Problems and Inadequacies in Applying Marriage Prohibition Regulations

- Currently, the phenomenon of "living together as husband and wife" between people of the same sex is also happening a lot and complicatedly in our country.

According to iSEE research, Vietnam currently has about 1.6 million homosexual, bisexual and transgender people aged 15-59. They face many problems such as difficulties in identification (for transgender groups), living together, giving birth, etc.

children, adoption... According to statistics from 2007, in Hanoi there are about

10,000 men have homosexual relationships, in Ho Chi Minh City there are about 20,000 people [20, p. 80]. In recent years, the number of people having homosexual relationships continues to increase. Although, according to the provisions of the Law on Marriage and Family in 2000, marriage between people of the same sex is prohibited, however, the phenomenon of same-sex couples living together without registering their marriage is quite common. For example, the case of two male students born in 1987, "publicly married", living together in a student dormitory on Le Thanh Nghi Street, Hanoi, or the case of two female students publicly married living together in a student dormitory in Tan Mai, Hoang Mai District, Hanoi [37]. Not only quietly living together, in reality, there have been weddings between same-sex couples. On December 14, 2010, in Hanoi, the wedding of the first gay couple in Vietnam took place, between two female friends who were classmates: Thuy Linh, born in 1991, a first-year student at an international school, and Quang Minh, the director of an advertising media company in Hanoi, which created a significant impact on the thinking of the social community. The wedding took place grandly in front of nearly 100 friends and relatives with roses, greeting cards, and full solemn ceremonies [33]. Next, in 2011, in Ho Chi Minh City, the wedding of two gay men took place: Pin Okio, real name Do Dinh Luan (born in 1989) and Nel Fi, real name Le Ba Phi (born in 1985 ). This was the second gay wedding and the first gay wedding to be held publicly in Vietnam. Perhaps this was the most special wedding in Vietnam at that time with the image of two young people wearing two luxurious vests walking down the aisle with the congratulations of relatives, making many people moved [46]. From the beginning of 2012 until now, the public has witnessed more public same-sex weddings with the support of both families. In early 2012, a same-sex wedding between two girls in their early 20s took place in Dam Doi town (Ca Mau) and surprised many people. The bride was Nguyen Van N. (20 years old, living in Dam Doi town, Dam Doi district, Ca Mau), and the groom was

Nguyen Thi N. (21 years old, residing in Khanh Binh commune, Tran Van Thoi district), this wedding was previously prevented by both families, but because the young couple threatened to commit suicide, the family had to organize it. However, the wedding was prevented by the local government because it was considered a violation of the 2000 Law on Marriage and Family. Thus, in terms of law and customs, same-sex marriage is not recognized, however, the situation of people of the same sex organizing weddings and living together is happening more and more and openly, it has become a phenomenon in society but has not been regulated by the 2000 Law on Marriage and Family. Currently, there are many people who support same-sex marriage, and a specific manifestation is that on the morning of May 17, 2013, in Hanoi, a mass wedding procession called "Love is Marriage" took place with the purpose of celebrating the International Day Against Homophobia, Biphobia and Transphobia (IDAHO) to support same-sex marriage in Vietnam. Therefore, the current reality is raising the issue of whether to remove the regulation prohibiting same-sex marriage in the Law on Marriage and Family, or what kind of regulation is needed to ensure the preservation of Vietnamese morality and traditional culture, while respecting citizens' right to freedom of marriage...?

Third , the practice of the Court annulling illegal marriages in cases of violation of the marriage prohibition regulations does not accurately reflect the actual situation.

As analyzed in some areas of violations of marriage prohibitions, it can be seen that there are still many cases of violations of marriage prohibitions, however, the number of cases resolved before the law is very small, that is, the Court annulling illegal marriages.

According to statistics of People's Court of Phu Tho town, Phu Tho province:

- In 2008, the Court resolved 80 marriage and family cases, including 4 cases of illegal marriage annulment, accounting for 5% of the total number of marriage and family cases;

- In 2009, the Court resolved 89 marriage and family cases, including 1 case of illegal marriage annulment, accounting for 1.12% of the total number of marriage and family cases;

- From 2010 to 2013, among the marriage and family cases resolved by the Court, there were no cases of illegal annulment of marriage, accounting for 0% of the total number of marriage and family cases.

The above figures show that the number of cases of illegal marriage annulment is very small, which means that the number of cases of violations of marriage prohibitions that are handled is very small, not reflecting the actual situation. In some courts, the number of cases of illegal marriage annulment is even non-existent. For example, the People's Court of An Duong District, Hai Phong City; the People's Court of Hoa Lu District, Ninh Binh Province. This shows that when the parties discover a violation or intentionally violate it, they often agree with each other, correct it themselves, or let it go, continue to live together, etc. When violating the regulations on marriage prohibitions, men, women, their parents, and children do not request the Court to annul. Agencies and organizations with the right to request do not know about the violation of marriage prohibitions or may know but do not request. In terms of procedural principles, the Court only adjudicates when there is a request from those with the right. Therefore, the number of violations of marriage prohibition cases that have been annulled by the Court is actually very limited compared to the violations that occur in practice. Thus, the problem is not only that the number of illegal marriage annulments by the Court does not accurately reflect the actual violations, but also that the number of violations of marriage prohibition regulations that have not been resolved by the Court is still quite large, greatly affecting the values ​​of marriage and family and social order.

3.2. PROBLEMS AND INADEQUACIES IN THE APPLICATION OF REGULATIONS PROHIBITING MARRIAGE

In practice, applying the above-mentioned cases of marriage prohibition can be seen as some shortcomings in the application of the law:

* In theory

Some regulations on cases of prohibited marriage under the 2000 Law on Marriage and Family are still inappropriate, specifically:

Firstly , currently, the law prohibits married people from marrying and living together as husband and wife with another person. Based on

Clause 3.1, Section 3, Circular 01/2001/TTLT-BTP-BCA-TANDTC-VKSNDTC

regulations:

Cohabitation is when a married person lives with another person or an unmarried person lives with a person they know is married, openly or secretly, but lives together as a family. Cohabitation is often proven by having children together, being considered husband and wife by neighbors and the surrounding society, having common property, having been educated by family, agencies, and organizations, and continuing to maintain that relationship... [4].

However, in reality, there are many cases where one spouse pretends to go on a business trip for a few days to secretly live with another person, hiding it from the husband (wife) and children at home, even the neighbors, friends and colleagues do not know. There are cases where people live with another person for many years before being discovered by the wife. For example, Ms. Dieu, from Tay Ninh, has two children, and her husband is a district police officer. She said that for several years now, her husband has been having an affair with another woman, renting a house to live together. Once, she caught her husband sleeping with his lover, so she advised him, even sent a petition to his agency asking the organization to intervene. However, after sending the petition the day before, the next day the husband came back to scold and beat him, and threatened to make the whole province acquainted, so sending the petition did not do anything. According to Lawyer Nguyen Son, Chairman of the Quang Nam Provincial Bar Association, there are cases where:

The other man had a wife and children, and had been living as husband and wife with a woman for many years. When his lover became pregnant, he seduced and forced her to have an abortion and then disappeared. She asked many lawyers for advice to "punish" him for violating the monogamy regime, but to no avail. Where was the evidence? Now that the fetus had been aborted, how could she prove that the child in her womb was his in order to punish him? [31].

Or according to lawyer Nguyen Hoang Phuc, head of Saigon - Vien Dong law office:

There was a man who frequently left home to live with another girl, even though his wife knew very well and all the neighbors in the area knew. Many times the wife went to catch him red-handed, but both the husband and the girl denied it. The husband said that he only went to the girl's house to discuss business. Unable to handle the situation, the wife finally had to file for divorce [38].

Through this, we can see that in reality, there are many cases of husbands and wives secretly living with other people outside. However, to be considered a violation of the monogamy regime according to the Law on Marriage and Family, there must be a "living together" relationship, and according to Circular No. 01/2001, this living together must be proven by having children together, being considered as husband and wife by neighbors and the surrounding society, having common property..., so in reality, living together exists, but to prove it is not easy, so the punishment for these cases is very rare, if anything, their behavior is only a violation of morality and is condemned by society. But cases like this are common in reality today.

Second , the regulation on marriage prohibition for people who have lost civil capacity in Clause 2, Article 10 of the 2000 Law on Marriage and Family:

First of all, in terms of the term "person lacking civil capacity", this is a term that is not really close to the people, and does not ensure easy understanding for all people. Because the law, especially the Law on Marriage and Family, needs to ensure this nature so that people can easily accept it, thereby complying and complying. Previously, the Law on Marriage and Family in 1986 had a simpler and easier-to-understand provision, which is: prohibiting people with mental illness from being able to perceive their own behavior. In terms of terminology in Clause 2, Article 10 of the Law on Marriage and Family in 2000, when regulated like that, it will be more difficult to propagate, disseminate and apply the law to the people.

In addition, in this issue, there is currently no document providing specific guidance on how to handle the case of marrying a person who has lost civil capacity. According to the provisions of the 2005 Civil Code: A person who has lost civil capacity is a person who is mentally ill or has another disease that makes him/her unable to perceive or control his/her behavior. To confirm that a person has lost civil capacity, it is necessary to rely on the Court's declaration decision. In reality, in a family, when their children are born with a mental illness, or even when they are adults, the child has a mental illness, the relatives in the family are very sad. The law stipulates that the parents, guardians or representatives of that person must submit a request to the Court to declare that the person has lost civil capacity, then the Court, based on the conclusion of the appraisal organization, will issue a decision declaring the person has lost civil capacity. In the thinking and concept of Vietnamese people, when their children suffer from such an illness, emotionally they will not want to file a petition to the Court to declare their children as having lost their civil capacity. The question is whether a person who has not been declared to have lost their civil capacity can get married or not? There are many cases where a person is mentally ill or has another illness that makes them unable to perceive and control their behavior, but the family does not file a petition, and that person has not been declared by the Court to have lost their civil capacity, so legally, that person is not yet considered to have lost their civil capacity. Therefore, the law cannot prohibit that person from marrying another person, because there is no clear legal basis. This leads to many cases where the spouses only discover that their husbands have lost their civil capacity when they get married and live together. For example, the case of Ms. Nguyen Thu H. married Mr. Pham The P. Mr. Pham The P.'s family is the richest in the village, he is the only child, only his family knows that he is mentally ill, because his symptoms are not very clear, he just talks little, does not like to communicate with people. Therefore, when agreeing to marry Mr. P., Ms. H. did not know that her husband was mentally ill. After getting married, living together

After a few days with Mr. P., Ms. H. discovered it. Ms. H. asked her mother-in-law about his mental symptoms and was confirmed by his mother that he had a congenital mental illness, and that she, as his wife, had to take responsibility for taking care of him [24]. In such cases, there are many difficulties in handling them, as well as the consequences of marriage. On the contrary, in the case where one party knows that the other party has lost civil capacity but still agrees to marry, is it considered a legal marriage? Is the consent of one party in the case where the other party is unable to perceive and control their behavior considered a violation of the conditions for marriage? This case, in reality, has also happened, such as the case of Ms. Tran Thi T., who knew that Mr. Nguyen Van B. had a mental illness but still got married, leading to many unfortunate consequences. In addition, are people with physical or intellectual disabilities, such as those with Down syndrome, prohibited from getting married? Or the case of Mr. Nguyen Hon and Mrs. Tran Thi Lan, Yen’s parents, who came to her house to reclaim their daughter because Yen had cerebral palsy since childhood, as mentioned above, caused confusion for the local authorities when dealing with it. These are issues that the law still lacks specific regulations on, leading to problems and difficulties in resolving and applying the law.

Third , the regulation prohibits marriage between people of the same bloodline.

direct line, between relatives within three generations is not feasible

when applied in ethnic minority areas. In fact, in some localities,

It can be seen that the situation of marriage violating this prohibition still occurs because according to custom

local restaurant, people of the same "family" are brothers and sisters (how many generations)

also can not marry each other), and the others "they" (although still in

within three generations) are still allowed to marry. For example: Mong people in Ky Son district, Nghe An province in particular, in some provinces in the Northern region (through research in some provinces such as Lao Cai, Yen Bai, Cao Bang) and some countries in the world such as Laos, Thailand, America... in general, all have the view that people with the same surname (such as Vu, Va, Lau, Ho,...) no matter how many generations have passed