>>Husband-wife relationship in ancient laws of Vietnam
>>Conjugal institutions under ancient laws of Vietnam
Pham Diem
State and Law Research Institute
Yet, in certain cases, divorces were permitted or forced by feudal laws in order to protect the feudal social order and family ethics. Like marriages, divorces had to serve first of all the interests, honor and reputation of the couples’ great families and lineages as well as the feudal social order, not the sentiments and interests of the involved couples. Such thinking had governed the whole contents of divorce institutions in the ancient laws of Vietnam.
So, under the feudal laws, a marriage was terminated in the following cases:
1. The marriage was terminated when either spouse died.
It is natural under the modern legislation that a marriage will terminate when either the wife or the husband dies. Yet, that was not the case under the ancient law.
Article 2 of Hong Duc Code (the 15th century) and Article 2 of Gia Long Code (the 19th century) stipulated that if a woman, upon the death of her husband, failed to be in mourning of him while insisting on enjoying life all the same, failed to wear the mourning dress or remarried, she would be charged with “bat nghia” (disloyalty), one of the “thap ac” (ten serious crimes), and punished by law.
According to Article 320 of Hong Duc Code, if after the three-year period of mourning for her husband a woman wishes to remain a widow and worship her husband’s memory, any people other than her grandparents and parents who force her to remarry other man will be demoted three grades of virtue; the newly wed couple shall have to divorce, the woman will be returned to her former husband’s family and the man is not guilty.
Article 98 of Gia Long Code stated that if a widow remarried while being in the period of mourning for her deceased husband, she would be subject to 100 canings.
So, under the above-mentioned law provisions, if a husband died first, his wife had to mourn for him for three years, during which she was not allowed to remarry but had to stay in her deceased husband’s family and perform all obligations towards her in-laws like before her husband died. This means that such a marriage will terminate not immediately but after three years from the husband’s death.
On the contrary, if the wife died first, her husband would not have to mourn for her and may remarry immediately, meaning that the former marriage will terminate immediately after the wife’s death.
All the above provisions of the ancient laws aimed to enhance the women’s loyalty to their husbands according to Confucian thinkings.
2. The marriage was terminated according to law provisions on dissolution of marriage.
In cases where a marriage violated one of the prohibitions prescribed by law, it had to terminate at once even against the will of the involved couple. Those were the cases where:
- Two persons of a close blood tie on the paternal side married each other (Article 100 of Gia Long Code).
- Two persons of a close blood tie on the maternal side married each other (according to Article 101 of Gia Long Code).
- The marriage was made while in mourning of the father, mother or husband (Article 317 of Hong Duc Code and Article 98 of Gia Long Code).
- The marriage was organized while the grandfather, grandmother, father or mother was detained or imprisoned (Article 318 of Hong Duc Code).
- Mandarins married women in the localities where they were rulers (Article 103 of Gia Long Code).
- A man married his widow sister-in law or the wife of his deceased teacher (Article 324 of Hong Duc Code).
- Mandarins or their sons married women in the show business (Article 323 of Hong Duc Code).
- Free persons married slaves (Article 107 of Gia Long Code).
- Clergy persons got married (Article 106 of Gia Long Code).
The feudal laws forced the dissolution of the above-mentioned cases of marriage with a view to protecting the feudal moral principles as well as the feudal social order and hierarchy.
3. The law compelled the husbands to divorce their wives when the later were at fault.
Article 310 of Hong Duc Code stipulated that if a wife committed one of the seven faults, called “that suat”, and her husband refused to disclose it and to divorce her, he would be punished by law. Though “that suat” were not specified in Hong Duc Code, a separate legal document of that time enumerated such seven faults as follows:
a/ The wife was barren, being unable to give birth to children. Consequently, her husband’s family would have no one to carry on the lineage and worship the ancestors. This was considered undutiful and the man had to divorce such wife.
b/ Jealousy: If a wife had the bad habit of jealousy, her husband might divorce her because men could marry more than one wife ( polygamy) and the wives had no right to show jealousy. Moreover, the wife’s jealousy would destroy the family harmony.
c/ Serious ailments: If a wife suffered from leprosy, being unable to cook foods to worship the ancestors. This was also considered undutiful; hence the husband might divorce such a wife.
d/ Flirtatiousness and concupiscence: If a wife was easy of virtue and concupiscent, thus harming the reputation and honor of the family and relatives, the husband had to leave her.
e/ Disrespect of the husband’s parents: If a wife showed disrespect to her parents-in law, an act of undutifulness which was unforgivable, her husband had to divorce her.
f/ Garrulity: If a wife had a bad habit of talking too much, she had to be divorced by her husband as a garrulous woman might disrupt the family harmony and peaceful life. Moreover, being garrulous, she infringed upon the woman’s four virtues under the Confucian conception, namely “cong” (housewifery), “dung” (countenance), “ngon” (manner of speech) and “hanh” (chastity and faithfulness).
g/ Thievery or burglary: If a wife had a bad habit of pilfering or burgling, thus damaging the reputation and honor of her husband’s family, she had to be divorced by her husband.
So, with the “that suat” (seven faults) remedy, the feudal law-makers had placed the honor and reputation of the great family above all, including the marital ties and the rights and interests of the involved couples, forcing the husband to divorce his wife had the latter made only one of the seven faults mentioned above even against his own will.
Yet, the feudal laws under the Le dynasty specified the three cases, called “tam that khu” (three exceptions) where the husband was neither compelled nor allowed to divorce his wife even she had committed one of the seven faults. More concretely, the wife would not be divorced by her husband in the following cases even when she committed one of the seven faults:
- While she was mourning for her in-laws (including the grand father, grand mother, father, mother, brother and/or sister... of her husband).
- The couple had been poor by the time they just got married and later became rich.
- The woman got no next of kin to return to if she was divorced.
So, to some extent, the women who fell under the “that suat” (seven faults) case were protected by law if they could prove themselves to be in the three above-cited circumstances of “tam that khu”.
Article 108 of Gia Long Code specified cases of “that suat” and “tam that khu”, stating that if a husband failed to divorce his wife who had committed “that suat”, he would be given 80 canings. And vice versa, if a husband abandoned his wife who had not committed “that suat”, he would also be punished with 80 canings. Yet, if a wife suffered from serious ailment or committed adultery even when she fell in one of the “tam that khu” circumstances, the husband was still entitled to divorce her. And even if the wife committed adultery, the husband might sell her to other person, but not her lover.
4. The wife may apply for a divorce if her husband incurs blame.
When the wife committed the above-said mistakes, her husband was fully entitled to divorce her. Yet, when the husband committed the same, his wife was only entitled to apply for a divorce which would be decided by the mandarins.
Hong Duc Code prescribed two cases where a wife could apply for a divorce if her husband committed either of the following faults:
- According to Article 308, if the husband neglected his wife for 5 months, his wife might file a petition to the local mandarin applying for a divorce and her case had to be certified by the village mandarin. If the couple already had a child (or children), the time limit would be one year. If the husband was sent far away from home for public mission, this law provisions would not apply.
- According to the last clause of Article 333, if a man found any unreasonable excuse to insult his parents -in law, his wife might report this to the mandarin, applying for a divorce.
Meanwhile, Gia Long Code defined only one case where the wife could apply for a divorce. According to Article 108 of the Code, if a husband left home without a trace, abandoning his wife for three years, she was entitled to report such to the local mandarin and apply for a divorce. If the wife failed to do so and left her husband’s family without permission, she would be punished with 80 cane-flogging; if she married other man without permission, the penalty would be 100 canings. The feudal law-makers then explained that when a husband was gone leaving not a single trace, his wife was left without any dears to rely on and lived in anxiety and sadness without knowing whether her husband had died or remained alive and whether he would return or not. So, it would be inhumane to force her stay a widow. Yet, in such circumstance the wife would be blamed if she failed to report to the local mandarin and left her in-laws without permission, and her fault would be graver if she married other man because, the law-makers argued, her husband’s leaving home and her betrayal of her husband were two different things; she might return if she just left her in-laws, but if she married other man, everything was over.
5. Divorce due to the couple’s faults
When either husband or wife was at fault, the person not at fault might divorce the other person or when both were at fault they both had to the right to divorce each other. These cases were totally different from the above-cited cases in that the divorce was not forced by law. If the involved persons wished to divorce they might do it at their own will without having to report to the mandarins.
They included the following specific cases:
- Wives beating their husbands or vice versa: According to Article 284 of Gia Long Code, if a wife beat her husband, she would be subject to 100 canings; if the husband was beaten to injury, the penalty would be treble; if he was beaten to disability, she would be hanged; if her husband was beaten to death, she would be sentenced to beheading; and the wife might divorce her husband. If a husband beat his wife without causing any injury, he would not be guilty; if any injury was inflicted on her, he would be penalized but two grade lighter than the penalty he get when beating other person, and the wife might divorce him; if the wife was beaten to death, he would be sentenced to hanging. For this provision, the then law-makers argued that husband and wife lived together for love and conjugal loyalty; when they beat each other, such things no longer existed, hence the law permitted their divorce. If they did not want to divorce, this showed the love between them still existed. The wife must respect the husband; so in cases where the wife beat her husband (though no injury was caused), the husband may divorce her at his own will without any coercion by law. But when a wife beat her husband, inflicting injury on him, their conjugal loyalty no longer existed and the wife was entitled to divorce her husband, she could not do so if her husband refused. The feudal law-makers relied on both reasons and sentiment to further explained that divorce meant the compliance with law while non-divorce meant the compliance with the call of heart; and law had to accord with the sentiment and the call of heart and must not be so rigid to hurt the conjugal feeling and love; hence divorce had to be consented by the husband.
- Husbands leasing or mortgaging their wives: According to Article 95 of Gia Long Code, if a husband received money and mortaged his wife or leased his wife to other people, he would be penalized with 80 cane-floggings as were the mortgagee or the lessee, and the contract therefor would be cancelled. Meanwhile, the wife was entitled to divorce her husband. According to the feudal law-makers, such were shameful acts which had destroyed the sentiment between husband and wife as well as the moral principles, and such husband deserved harsh punishment while the wife was only the victim of her husband’s arbitrament.
- Husbands selling adulterous wives to their lovers. In this case, both the husband and the wife were at fault: The wife committed adultery with other man while the husband sold his wife to her lover (if to person other than her lover he was not guilty). Under Article 332 of Gia Long Code, the adulterous wife was subject to 90 canings while the husband who sold his wife to her lover and the lover were subject to 80 cane-floggings; and the couple might divorce each other and the woman was returned to her parents and relatives.
All the above-mentioned provisions of Gia Long Code were not seen in Hong Duc Code.
6. Mutually agreed divorce
The ancient laws also permitted a couple to part each other upon their mutual agreement when they found their hearts have failed to beat the same rhythm.
Hong Duc Code did not contain any article on the mutually agreed divorce though a legal document of that period (in 1494) prescribed it. Under such document, if husband and wife were not on good terms and agreed to leave each other, they both had to write a voluntary divorce paper and affixed their signatures thereon. The divorce paper had to be made in two copies, each of which was kept by the husband and the wife, then they parted each other without going to the local authorities for settlement.
In Gia Long Code, Article 108 also stated that if husband and wife were in disagreement, they might voluntarily divorce each other. The then law-makers explained that if husbands and wives could not live together in harmony they might divorce each other without being penalized though not any law provisions force them to do so.
On the legal consequences of the divorce, the husband-wife relationship totally terminated after the divorce and both persons might remarry without being prohibited by law. However, the ancient feudal laws failed to mention the bringing up of children and the division of property after the divorce. Perhaps, the then law- makers wished to leave these matters to customs and practices as well as to the mutual agreement between the involved persons or among members of the family or the lineage.-