Perfecting the marriage regime in the Vietnamese Law on Marriage and Family 2000

Law on Marriage and Family 2000. From a human rights perspective, removing the "prohibition" provision demonstrates humanity, contributing to reducing discrimination against the homosexual, bisexual, and transgender communities. Marriage between people of the same sex is a highly socially sensitive issue. The recognition of their marriage also needs to be considered, weighed, and viewed from many different aspects with a suitable roadmap and steps. In the economic, cultural, and social conditions of our country, the state's regulation of not recognizing marriage between people of the same sex but also not interfering with administrative measures in the right to live according to their gender identity and sexual orientation is consistent with the human rights of individuals.

Regarding the cohabitation between homosexuals, should the Law on Marriage and Family regulate this issue? The 2014 Law on Marriage and Family has left it open, completely without any regulations governing the relationship between people of the same sex living together.

In the world, the issue of marriage between people of the same sex has been raised for a long time and is currently being resolved at different levels. As of August 2013, there are 16 countries in the world that recognize marriage between people of the same sex. Most countries that recognize same-sex marriage have transitional provisions in their laws, from recognizing the rights of people of the same sex and cohabitation of people of the same sex before having regulations on recognizing same-sex marriage such as: The Netherlands regulated the registration of civil unions between people of the same sex in 1998, but it was not until 2001 that it officially recognized legal marriage between people of the same sex; Canada recognized the right to cohabitation between people of the same sex in 1999, but it was not until 2005 that it recognized marriage between them; The French Republic recognized the right to cohabitation between people of the same sex in 1999 and it was not until 2013 that it recognized their marriage...

In fact, in Vietnam today, the homosexual issue is very complicated, posing many potential risks that affect social order and safety.

even violating criminal law. Because of such practical requirements, a requirement is to resolve new relationships arising in reality. In my personal opinion, it is necessary to supplement regulations on cohabitation registration between people of the same sex, including regulations of a principled nature with contents such as conditions for cohabitation registration, procedures for cohabitation registration and resolution of consequences if not living together, property relations, child custody (if any) for the following reasons:

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Firstly , regulations on registration of cohabitation between people of the same sex will be the basis for the State to count the number of homosexuals, thereby creating favorable conditions for the State to manage, approach the regulated subjects and plan and issue policies properly in the future.

Second , it is a legal basis to contribute significantly to reducing the social stigma against homosexuals, creating conditions for them to integrate into the social community and live as their true selves, and enjoy equal legal regimes. The registration of cohabitation between people of the same sex demonstrates the State's concern for these subjects, eliminating the inferiority complex, eliminating the feeling that they live outside the regulation of the law.

Third , create a legal corridor and legal binding between people of the same sex in living together to determine the responsibilities of the parties to each other when they live together. At the same time, it also has the meaning of orienting education and adjusting the behavior of homosexuals in a positive direction, beneficial to society.

Fourth , the regulation on registration of cohabitation between people of the same sex is the legal basis for resolving legal consequences arising from cohabitation between people of the same sex, as well as legal consequences when cohabitation ends.

Currently, the law still has a gap in terms of marriage after gender reassignment for people with disabilities. The 2000 Law on Marriage and Family does not have any regulations on this issue, nor do sub-law documents provide specific guidance, although civil law, civil status law, and Decree No. 88/2008/ND-CP also recognize this issue. Therefore, in order to be effectively applied in practice, the Law on Marriage and Family needs to have clear regulations on marriage after gender reassignment for people with disabilities or whose gender has not been accurately defined. In particular, in the case of these people who are married but have their gender reassigned, how should this be resolved? In fact, many civil status agencies refuse to correct the gender of these reassigned people. Therefore, the Law on Marriage and Family needs to have clearer regulations in the direction of correcting civil status according to the new gender and fully recognizing their rights and obligations as those of people with correctly identified gender, including the right to marry and divorce.

Currently, according to the law, it is strictly forbidden to perform gender reassignment for those who have completed their gender, these people are not allowed to change their gender according to the law. But thanks to the achievements of modern medicine, many people have undergone gender reassignment surgery. Will the State recognize or not recognize their new gender? According to the author, we should recognize the new gender of transgender people according to their wishes and true gender, administratively identify such as changing their name, male or female gender according to their request after the Medical Council determines their gender to ensure human rights and civil rights. The desire to live as oneself, not to live "out of coverage" or to pursue personal happiness is a legitimate thing for every person, as recognized in the Constitutions of Vietnam as well as in the world. Transgender people themselves are also citizens, so they need to be created conditions to improve equality in society.

The above are some cases of problems in determining the gender of citizens that have not been mentioned in the guidance documents. If these people register for marriage, it will be very difficult for the local civil status office. The 2014 Law on Marriage and Family does not regulate these issues, however, this is a practical issue that needs to be improved in legal documents related to marriage and family. The author hopes that the guidance document for the implementation of the 2014 Law on Marriage and Family will specifically regulate these cases.

* The problem of men and women living together as husband and wife without registering their marriage

The current law stipulates that men and women who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife. However, according to the Summary Report on the Implementation of the 2000 Law on Marriage and Family, after nearly 13 years of implementing the law, 32% of cases are still not registered for marriage. The cohabitation of men and women who do not register their marriage has given rise to property relationships, parent-child relationships, etc. The 2000 Law on Marriage and Family also regulates this issue in Article 17, but it is not clear and complete. In the relationship of cohabitation as husband and wife without registering their marriage, it is necessary to determine the protection of the rights of women and children - vulnerable subjects in society. From that reality, to regulate the cohabitation of men and women as husband and wife without registering their marriage in a complete and strict manner, protecting the rights of the parties involved, especially women and children, Articles 14, 15, 16 of the 2014 Law on Marriage and Family have specifically stipulated the legal consequences in this case regarding property, rights and obligations between the parties and children on the basis of ownership rights of relevant laws.

The author completely agrees with these provisions of the 2014 Law on Marriage and Family, because in reality, there are still cases of cohabitation as husband and wife without registering their marriage but the parties actually consider each other as husband and wife. Therefore, the addition of provisions on resolving consequences in Articles 14 , 15 and 16 of the 2014 Law on Marriage and Family is necessary, in accordance with the reality of the cohabitation of couples.

The 2014 Law on Marriage and Family affirms that men and women living together as husband and wife without registering their marriage do not create rights and obligations between husband and wife; In the case of men and women living together as husband and wife but then registering their marriage according to the provisions of law, the marriage relationship is established from the time of marriage registration. This provision demonstrates the strictness of the law and encourages everyone to comply with the law on marriage registration. In addition, the 2014 Law on Marriage and Family stipulates that the property relations, obligations and contracts of men and women living together as husband and wife are resolved by agreement between the parties; if there is no agreement, it will be resolved according to the provisions of the Civil Code and other relevant provisions of law. The resolution of property relations must ensure the legitimate rights and interests of women and children; Housework and other related work to maintain a common life are considered as paid labor. Based on the characteristics of cohabitation as husband and wife, although the parties are not legally married, in reality they are attached, together taking care of, sharing, and contributing to the common life, so this provision is completely appropriate, demonstrating the humane and fair nature of the law.

In addition, the author completely agrees with the addition of the regulation in Point d, Clause 2, Article 5 of the 2014 Law on Marriage and Family, which prohibits marriage or cohabitation as husband and wife between people of the same bloodline; between relatives within three generations; between adoptive parents and adopted children; between former adoptive parents and adopted children, father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and wife's stepchild, stepmother and husband's stepchild. This is a new point added compared to the 2000 Law on Marriage and Family. This regulation is based on reality and is completely appropriate, and is an important legal basis for other legal documents (Decree on administrative sanctions, Penal Code, etc.) to prescribe sanctions for this violation to ensure the strictness of the law, and to be consistent with the culture and traditions of Vietnamese families.

* About the person who has the right to annul an illegal marriage

The provision in Clause 2, Article 15 of the 2000 Law on Marriage and Family is no longer appropriate because according to the provisions of the 2004 Civil Procedure Code, the People's Procuracy does not have the right to request the annulment of an illegal marriage. Therefore, this provision needs to be amended to ensure consistency in the legal system.

In addition, according to the provisions of the Law on Marriage and Family 2000, there are a number of agencies and organizations that have been dissolved (Child Protection and Care Committee), so the law needs to be adjusted accordingly. Article 10 of the Law on Marriage and Family 2014 stipulates that the State management agency for family and the State management agency for children are the entities that have the right to request the Court to annul illegal marriages. Currently, the State management agency for family is the Ministry of Culture, Sports and Tourism, however, according to Resolution No. 02/2013/NQ-CP on family work, the law has not yet assigned responsibilities to specific ministries and branches in general family work as well as responsibilities in handling issues related to marriage. Therefore, the law needs to specifically stipulate the right to sue of ministries and branches so that the regulations are feasible in practice. The issues raised above have been amended in the Law on Marriage and Family in 2005.

2014. According to Clause 2, Article 10 of the 2014 Law on Marriage and Family, the agencies and organizations that have the right to request the Court to annul illegal marriages are the state management agency for family; the state management agency for children; and the Women's Union. This provision is consistent with and consistent with the provisions of the Civil Procedure Code.

3.3.2. Recommendations on implementation organization

* Improve professional qualifications, skills and skills in handling marriage and family cases for judicial and civil status officers in communes, wards and towns.

In practice of marriage registration, the human resource factor of commune and ward officials plays an important role. Currently, the situation of local officials with unqualified professional qualifications, working in a bureaucratic and inflexible manner leads to difficulties in law enforcement. Therefore, it is necessary to improve the qualifications of

professional and regularly organize training courses, raise awareness for local officials, especially judicial and civil status officials. This activity helps local officials grasp the provisions of the law on marriage conditions, marriage registration, and properly, fully, accurately and objectively carry out the verification of marriage conditions of the married person. Thereby, enhancing the responsibility of judicial and civil status officials in implementing the provisions of the law on marriage. In addition, there should also be strict sanctions for serious violations affecting civil rights and human rights of officials when enforcing the law.

* Improve the qualifications of judicial officers

Improving the quality of judges for courts at all levels in general and those who directly handle cases of illegal marriage annulment is an extremely urgent issue today. To do this well, it is necessary to implement solutions such as: Quickly completing regulations on the selection and appointment of judges and people's assessors; periodically organizing experience exchanges and lessons learned between judges; regulating and organizing regular training on legal knowledge on marriage and family, professional skills for judges and people's assessors; applying regulations on organizing regular examinations for judges, etc.

* Education to raise awareness , level and legal consciousness of the people

The dissemination and education of law in general, and the law on marriage and family in particular, plays an important role in raising the understanding and awareness of compliance with the law on marriage and family of agencies, organizations, competent persons and the people. The purpose of the dissemination and education of law is to eliminate backward customs and practices in marriage among ethnic minorities, in order to ensure population quality. Help people understand the meaning of marriage and family.

Register for marriage, thereby voluntarily registering for marriage, protecting your own rights. At the same time, minimize violations of marriage conditions such as violating the monogamous marriage regime, incestuous marriage...

The work of propagating and educating the law on marriage and family in general and the law on marriage in particular must be expanded in the direction of socialization. Mobilize the maximum number of organizations and individuals to participate in propagating and promoting population and family policies, regulations on marriage conditions through many forms and channels such as:

- Through mass media, direct propaganda through conferences of sectors and organizations at all levels, and at the same time, strengthen the activities of propaganda teams at the grassroots level. In remote areas, to raise awareness and understanding of the Law on Marriage and Family, especially the understanding of the marriage conditions for ethnic minorities, it is necessary to strengthen information and propaganda work, and eliminate backward customs that are not suitable for the times.

- Promote propaganda on population education, reproductive health, and marriage conditions for young people in general schools, vocational schools, and political training centers nationwide through various forms such as: student clubs with the law or competitions to learn about the law on marriage conditions or through extracurricular hours...

* Improve the quality of life of all people

On the basis of actively implementing the campaign "All people unite to build a cultural life", promoting the work of building cultural families, helping children inherit the best results, grow up in a stable, healthy and developing environment. In addition, the State needs to create the best conditions for reproductive health care for people, especially adolescents, and strengthen pre-marital counseling for adolescents to

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