Perfecting the marriage regime in the 2000 Law on Marriage and Family of Vietnam

However, the practical application of the 2000 Law on Marriage and Family has shown that some regulations on the marriage system have revealed many limitations and inadequacies, which are no longer suitable in the current conditions of integration and globalization. Regulations on the age of marriage are not consistent with documents in the legal system of our country. Regulations on resolving consequences arising from cohabitation as husband and wife without marriage registration have not been recorded in the 2000 Law on Marriage and Family and have not ensured consistency. The recognition or non-recognition of marriage between people of the same sex is a sensitive and current social phenomenon that also needs serious research from many social and legal aspects. The policy on annulling illegal marriages is still inconsistent, causing difficulties for courts at all levels when resolving annulling illegal marriages.

The inevitable requirement is to further improve the legal regulations regulating the marriage system to protect the rights of individuals; to concretize the Constitution and the Government's Strategy on Vietnamese family development to 2020, with a vision to 2030 on family building and development; to ensure consistency and stability in the legal system, both meeting the objective requirements of practice and being consistent with international practices on the basis of inheriting and promoting the good traditional cultural and ethical values of Vietnamese families.

Based on that situation, the author chose the topic: " Perfecting the marriage regime in the 2000 Law on Marriage and Family of Vietnam " as necessary, meeting the requirements of current practice.

2. Research status of the topic

The marriage institution is an institution with an important position and role in the 2000 Law on Marriage and Family. Therefore, up to now, there have been many research works on the entire content of the marriage institution or a part of this institution. Research works on the marriage institution in the 2000 Law on Marriage and Family can be divided into three large groups:

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- Thesis group: In this group, we can list some typical research works such as: " Marriage regime in the Law on Marriage and Family 2000" , Master's thesis in Law by Khuat Thi Thu Hanh, Faculty of Law - Hanoi National University, 2008; "Legal aspects of cohabitation as husband and wife without marriage registration in Vietnam", Master's thesis in Law by Hoang Hanh Nguyen, Faculty of Law - Hanoi National University, 2011; Some theoretical and practical issues on illegal marriage in the current social situation , Master's thesis in Law by Nguyen Huyen Trang, 2012... Most of the theses study a specific content of the marriage regime in the Law on Marriage and Family 2000. There is only one master's thesis studying this regime, however, it was quite a long time ago and not in the context of amending the Law on Marriage and Family 2000.

- Textbook and book group: In this group, we must mention the Textbook of Vietnamese Law on Marriage and Family of Hanoi Law University, People's Police Publishing House, Hanoi, 2009. Regarding books, we can mention some specialized books such as: Some theoretical and practical issues on the Law on Marriage and Family 2000 by two authors Nguyen Van Cu and Ngo Thi Huong, National Political Publishing House, Hanoi, 2002; Scientific commentary on the Law on Marriage and Family by author Nguyen Ngoc Dien, volume 1, volume 2, Tre Publishing House, 2002. In addition, there are many other specialized research books, but there has not been any separate, complete and comprehensive research on theory as well as assessment of the positive aspects, limitations, and inadequacies that need to be amended of the marriage institution in the Law on Marriage and Family 2000.

- Group of articles and magazines specializing in Law: Research articles in this group are mentioned in a number of magazines such as the Journal of Law, the Journal of People's Court, the Journal of Procuracy, the Journal of Democracy and Law, the Journal of Legislative Studies. Among them, we can mention the article by Dr. Nguyen Van Cu: " Improving regulations on marriage conditions according to the Law on Marriage and Family 2000 ", the Journal of People's Court, No. 24/2013 ; Dr. Ngo Thi Huong

" Some issues on the regulation prohibiting marriage between people of the same sex ", Journal of Law, No. 06/2001 ; Master. Bui Thi Mung " Marriage regulations in Vietnamese Marriage and Family Law through the periods from a legislative perspective ", Journal of Law, No. 11/2012... In addition, there are many articles published in electronic newspapers.

In general, each research work has viewed and solved the issue of marriage from a different content and perspective, and up to now, there has not been any work that has conducted in-depth and separate research on the improvement of the marriage regime in the 2000 Law on Marriage and Family in the context of amending the 2000 Law on Marriage and Family. Recognizing this issue, the thesis deals with the study of theoretical issues on marriage, marriage conditions, illegal marriage, the basis of regulations and the significance of the marriage regime as well as assessing the positive aspects, limitations and shortcomings in the practical application of the marriage regime in order to make recommendations to improve this regime to suit the current socio-economic conditions, when there are many factors affecting and influencing the marriage of men and women. Therefore, the work will not be a repetition of any previous work.

3. Purpose and research tasks of the thesis

3.1. Research purpose

The thesis clarifies theoretical issues on the marriage institution; researches and analyzes the content and significance of the marriage institution and evaluates the application of the marriage institution in practice, at the same time discovering the inadequacies and limitations of the marriage institution, on that basis, giving some recommendations and proposals to improve this institution.

3.2. Research tasks

To achieve the research purpose, the thesis has the following tasks:

- Research to clarify theoretical issues on marriage institutions, study the development of marriage institutions through historical periods.

- Analyze legal provisions on marriage institutions such as marriage conditions, marriage registration and illegal annulment of marriage.

- Evaluate the application of legal regulations on marriage in practice, clarify unreasonable, inadequate, and unfeasible points, as well as point out inconsistencies with other relevant legal documents regulating marriage (on marriage age, same-sex marriage, illegal annulment of marriage, etc.).

- Point out issues that need to be amended and supplemented in the marriage regime in the Law on Marriage and Family, thereby proposing a number of recommendations to perfect the legal provisions on this regime.

4. Research object and scope

4.1. Research subjects

The research objects of the topic are general theoretical issues on marriage institutions, legal provisions on marriage institutions as well as other relevant legal documents and practical application of marriage institutions through specific cases and matters.

4.2. Scope of research

The topic studies the legal provisions on marriage institutions under the Law on Marriage and Family 2000 (from Article 9 to Article 17) without including the issue of marriage with foreign elements and related to the Law on Marriage and Family 2014. At the same time, the topic studies a number of practical cases in the application of marriage conditions and the annulment of illegal marriages when the Law on Marriage and Family 2000 comes into effect. On that basis, the thesis evaluates the application of the provisions of the marriage institution in practice, discovering shortcomings that need to be amended.

5. Research methods

The thesis applies the dialectical materialism and historical materialism methodology of Marxism-Leninism, the Party's viewpoint and Ho Chi Minh's thought on family and human rights in the field of marriage and family.

The thesis uses a number of specific research methods such as: analysis, synthesis, comparison, contrast, systematization, interpretation, induction, etc. to carry out the proposed contents.

6. Novelty and contributions of the topic

The thesis is a research work that analyzes in a comprehensive, complete and systematic manner theoretical issues on the institution of marriage; current legal provisions and evaluates the application of these provisions in practice. On that basis, the thesis points out the limitations and shortcomings in the legal provisions regulating the institution of marriage. During the writing process, the author proposed a number of contents to perfect the institution of marriage in the Law on Marriage and Family 2000, with comparisons with the provisions of this institution according to the revised Law on Marriage and Family 2014, thereby ensuring the topicality and scientific nature of the research issue.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:

Chapter 1 : Some general theoretical issues on the institution of marriage.

Chapter 2 : Marriage regulations under the Law on Marriage and Family 2000.

Chapter 3 : Practical implementation of marriage regulations and some recommendations to improve marriage regulations.

Chapter 1

SOME GENERAL THEORETICAL ISSUES ON THE INSTITUTION OF MARRIAGE

1.1. GENERAL CONCEPT OF MARRIAGE REGULATIONS

1.1.1. Concept of marriage and conditions for marriage

* Concept of marriage

The concept of marriage can be understood from two perspectives:

- From a social perspective, marriage is a practical event, a man and a woman marrying each other according to certain rituals, often governed by the customs, habits, ethics, ideology, and religion of contemporary society. The marital relationship is a form of social relationship established between two subjects, male and female. This relationship exists and develops according to the laws of nature with the purpose of ensuring the survival and development of human society. Even without any rules or regulations, the marital relationship has always been established, people still live together, still have children and continue from generation to generation. Therefore, the right to marry is a natural right, a human right. However, through historical periods, with the emergence of different socio-economic forms, rules of conduct expressing the will of the ruling class gradually appeared to regulate social relations. Marriage is no longer a freedom, an instinct of human beings but has become a social relationship governed by the interests of the ruling class. The State always uses the law to regulate aspects of the relationship of marriage and family. This regulation is different in each State, each regime. It can be clearly defined by legal norms or recognized by custom. The State controls the freedom of marriage of citizens by setting out regulations as the basis for establishing the relationship of husband and wife, expressed through regulations on marriage and marriage conditions.

- From a legal perspective, the 1986 Law on Marriage and Family defines it as follows: "Marriage is when a man and a woman marry each other as husband and wife according to the provisions of law. Marriage must comply with Articles 5, 6, 7, and 8 of the Law on Marriage and Family" [40]. The 2000 Law on Marriage and Family defines it as: "Marriage is when a man and a woman establish a marital relationship according to the provisions of law on marriage conditions and marriage registration" [42, Clause 2, Article 8]. Thus, marriage can be understood as a legal event, including the following elements:

Firstly , the expression of the voluntary will of the man and woman wishing to marry each other. In the application for marriage registration and before the competent state agency for marriage registration, the man and woman express that they are completely voluntary and wish to marry, that expression must be completely consistent with the thoughts and wishes of both people. Men and women getting married are wishing to be bound together in a marital relationship and together build a prosperous, equal, progressive, happy, and sustainable family. Therefore, the voluntary will of men and women in getting married is a condition to ensure the marriage has legal value and is at the same time the basis for building a sustainable family.

Second , the male and female parties must fully meet the conditions for marriage. According to the Law Dictionary, the conditions for marriage are provisions of law that when getting married, the male and female parties must have or not have those conditions to have the right to marry. When both the male and female parties meet the conditions of age, of voluntariness and are not in one of the cases of prohibited marriage, they have the right to marry each other. Regulations on the conditions for marriage are necessary to ensure order in the family and society; preserve the fine customs and traditional ethics of the Vietnamese people; and ensure the legitimate interests of the parties in the marriage relationship.

Third , there is recognition by a competent state agency. The marriage registration office considers the marriage registration request of the man and woman. If both parties are eligible to get married, the marriage registration office will proceed with the registration.

marriage, recorded in the Marriage Register and issued Marriage Certificates to men and women. Through the event of marriage registration, the State has recognized the marriage of a man and a woman. The marriage certificate is the legal basis recording that the man and woman have created the rights and obligations of husband and wife, from which the State has measures to protect the rights of husband and wife, especially the rights of women and children. In terms of state management, marriage registration is a measure for the State to control compliance with the law in marriage and prevent violations of the conditions for marriage.

Thus, from a legal perspective, marriage is a legal event that includes constituent elements. If one of these elements is missing, the marriage is invalid and does not create a marital relationship between a man and a woman.

From the above analysis, the concept of marriage can be presented as follows: Marriage is a legal event, showing that a man and a woman get married on the basis that the parties fully meet the marriage conditions prescribed by law and are recognized by a competent state agency according to certain procedures and order, giving rise to a marital relationship between the two parties.

* Concept of marriage conditions

Marriage is always associated with marriage conditions, "no one is forced to marry, but everyone is forced to obey the law of marriage once he or she gets married...marriage cannot be subject to the arbitrariness of the person getting married, but on the contrary, the arbitrariness of the person getting married must obey the nature of marriage" [61, p. 90].

Marriage conditions are requirements, standards, and norms set for men and women when establishing a marriage relationship. In a classless society, marriage conditions are governed by social norms such as morality, customs, religion, traditions, and culture of contemporary society. When the State appears, the State uses laws to regulate marriage conditions that the parties must meet. These regulations reflect the purpose of the ruling class to build a family model that is suitable for the interests of the society.

Perfecting the marriage regime in the 2000 Law on Marriage and Family of Vietnam - 2

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