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Inheritance under Bahnar customary law

Updated: 15:38’ - 24/06/2008

>>The “Bahnar” - their rules and customary practices

Every ethnic minority group in
Vietnam has its own cultural traditions and customs, which, for thousands of years, have been preserved from one generation to another and now become customary laws. Customary laws help support the State’s legal system in resolving disputes in ethnic minority communities, but at the same time have limitations which negatively affect the effectiveness of national law. This article deals with inheritance and land-related matters under the customary law of Bahnar people in the Central Highlands.

NGUYEN QUANG TUYEN, LL.D
Hanoi Law University

Inheritance under Bahnar customary law

Bahnar customary law defines estate as private property of the deceased and his/her share in property under common ownership.

Bahnar people divide estate in several ways.

For natural children, the one who takes care of the parents until they die enjoys a larger share of estate, especially if it is the youngest daughter. However, he/she is responsible for taking care of the parents’ graves. In general, all children may inherit estate of their dead parents.

Adopted children may also inherit estate of their adoptive parents. An adopted child who is dutiful and has made contributions to a family may enjoy a share in estate equal to natural children.

When a husband or wife dies, his/her estate will be left to his/her children and living spouse. If the living wife or husband gets married again and does not live in their common house, she/he is not allowed to inherit estate of the dead spouse, which is then left to their children. When the living wife or husband remains staying in the couple’s house until she/he dies, her/his estate will be left to their common children. Children of the living spouse with his/her following wife/husband may inherit only property of their natural parents when they die. Stepchildren of a couple may inherit estates of their own father/mother and their step mother/father with equal share if these stepchildren love one another and agree with this estate division.

Heirs are obliged to pay debts owed by the deceased within the property left by the dead. Appropriation of estate inherited to others is settled by a family on its own, or by a village patriarch if the family fails to do so.

Land-related matters under Bahnar customary law

Like other ethnic minority groups in the Central Highlands, Bahnar people consider land as common property of the community. However, individuals who spend their own money and energy to reclaim land may own that land.

The Bahnar set boundary for land use by embanking, placing stakes, or planting perennial big trees on the land reclaimed and used by their parents. Land demarcation must be witnessed by others.

Land-related disputes are rare among Bahnar people.

If a person encroaches on or appropriates land of another person who has not used it up or leaves it fallow, the two parties may negotiate on the new boundary of land by themselves.

If the former owner can produce valid proofs and bases and has a witness for his/her ownership of the land, the other party must return the land.

Under Bahnar customary law, division of residential and farming land between villagers of the same village or different villages, or use of farming land for residence must be approved by village patriarchs. A village patriarch may rule the division of residential and farming land in these cases.

Village patriarchs will also settle land-related disputes between villagers of the same village or different villages. Disputes are settled based on certification of the origin of land, which is usually made by old villagers who have deep understanding about the village’s land-related matters, such as witnesses of land use. Based on certification of the origin of the land under dispute, a village patriarch will decide on the ownership of the land.

When involved parties do not agree with a village patriarch’s decision, they will challenge each other to competition (to dive, for instance) and the winner will enjoy the entire land under dispute. However, this rarely happens and in most cases, parties accept the village patriarch’s decision.

Some thoughts on Bahnar customary law on inheritance and land-related matters

Inheritance

There are three positive aspects of Bahnar customary law concerning inheritance. First, the law prescribes inheritance similarly with the civil code under which estate includes the deceased’s own property and his/her share in property under common ownership.

Next, Bahnar customary law reflects a progressive view by determining the right of equality in inheritance between sons and daughters and between natural and adopted children.

Finally, the law encourages close relations and attachment between half-brothers and half-sisters, a foundation for a happy family.

However, the law also reveals limitations, which are the deprivation of inheritance right of a living spouse to his/her deceased partner’s own property if he/she gets married with another person and does not live in their common house, and the settlement by village patriarchs of disputes over payment of debts of the deceased between creditors and heirs because the settlement is based on subjective opinions of village patriarchs rather than on legal grounds.

Land-related issues

Bahnar customary law considers land as common property of the community. Settlement of land-related disputes is based on the principle of self negotiation and conciliation. When such negotiation fails, a village patriarch is invited to settle the dispute and his decision is usually respected and accepted by involved parties.

This mechanism helps not only settle disputes but also maintain solidarity and promote a sense of concession in the community. However, Bahnar customary law recognizes private ownership of land reclaimed by individuals, which is contrary to the current land law.-

 

VNL_KH1 

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