PHAM DIEM
State and Law Institute of Vietnam
Under feudal regimes for thousands of years, the Vietnamese people saw their marriage and family relations restricted within their native land. Such psychology and traditional practice were clearly reflected in a wellknown Vietnamese saying: “Ta ve ta tam ao ta, du trong du duc ao nha van hon” (It is better to bath in our pond whether its water is clear or troubled). Even in the early years of modern times in Vietnam, marriages between Vietnamese nationals and foreigners were still rarely seen. It is therefore not strange that the 1959 Law on Marriage and Family of Vietnam contained not a single institution on marriage and family relations involving foreign elevements.
But, things have changed since Vietnam adopted the open-door and international integration policies, with more and more foreigners coming to the country for business activities, working or study and more and more Vietnamese going abroad to live, work or study. In such a context, marriages between foreigners and Vietnamese nationals have been on the rise and marriage and family relations involving foreign elements have been broadened.
For the first time in Vietnam, the 1986 Law on Marriage and Family contained institutions on marriage and family relations between Vietnamese citizens and foreigners. These institutions largely covered marital relations, the rights and obligations between parents and children, divorce, and guardianship, which were provided in only one chapter, Chapter IX entitled “Vietnamese Citizens’ Marriage and Family Relations with Foreigners,” with concise provisions in only three articles. Consequently, such institutions of the 1986 Law on Marriage and Family had to be detailed with the Ordinance on Marriage and Family Relations between Vietnamese Citizens and Foreigners, which was promulgated in 1993.
In the process of Vietnam’s “doi moi” (renewal) and international integration, marriages between Vietnamese citizens and foreigners have become more common and diverse, and more complicated as well. The 2000 Law on Marriage and Family has not only inherited the 1986 Law and the 1993 Ordinance but also developed and supplemented in a comprehensive and specific manner the institutions on marriage and family relations involving foreign elements, which have been arranged in one chapter (Chapter XI) with seven articles and guided in detail for implementation by Government Decree No. 68/2002.
1. Concept and scope of regulation
The 1986 Law on Marriage and Family used the concept “Vietnamese citizens’ marriage and family relations with foreigners” to cover:
- Marriage between Vietnamese citizens and foreigners.
- Divorce between Vietnamese citizens and foreigners.
- Rights and obligations of husbands and wives in the marriage relations between Vietnamese citizens and foreigners.
- Rights and obligations of parents and children in the marriage relations between Vietnamese citizens and foreigners; determination of fathers, mothers for children.
- Child adoption between Vietnamese citizens and foreigners.
- Guardianship relations between Vietnamese citizens and foreigners.
Only with the 2000 Law on Marriage and Family was a new, broader concept used, that is “the marriage and family relations involving foreign elements.” More specifically, under the 2000 Law on Marriage and Family, marriage and family relations involving foreign elements covered marriage; divorce; recognition of fathers, mothers and children; and child adoption between Vietnamese citizens and foreigners, between foreigners permanently residing in Vietnam, or between Vietnamese citizens with either or both settling down overseas.
2. Principles of Vietnamese law on marriage and family relations involving foreign elements
In the Socialist Republic of Vietnam, marriage and family relations involving foreign elements are respected and protected in accordance with Vietnamese law and international treaties to which Vietnam has signed or acceded. The Vietnamese state protects the legitimate rights and interests of Vietnamese citizens in foreign countries in marriage and family relations in accordance with Vietnamese law, host countries’ law, and international law and practices. In their marriage and family relations with Vietnamese citizens, foreigners in Vietnam have the same rights and obligations as Vietnamese citizens, except as otherwise provided for by Vietnamese law.
Vietnamese law strictly bans the abuse of marriage, recognition of fathers and/or mothers, child adoption for the purposes of trafficking, labor exploitation, or sexual abuse of women and children or for other self-seeking purposes. Under Vietnamese law, brokerage for marriage or recognition of fathers, mothers and children, or child adoption for profit making in any form is strictly prohibited.
3. Marriage involving foreign elements
Regarding marriage conditions, each partner shall have to abide by his/her respective country’s law. Foreigners must also abide by the provisions of Vietnam’s Law on Marriage and Family on marriage conditions and cases of marriage prohibition if their marriages are carried out before competent bodies of Vietnam.
As compared to the 1986 Law on Marriage and Family, the 2000 Law on Marriage and Family has added provisions on marriages between foreigners in Vietnam before competent bodies of Vietnam, under which each partner must abide by the law of the country of his/her citizenship or of his/her residence (for stateless persons) and also abide by the provisions of Vietnam’s Law on Marriage and Family on marriage conditions and marriage prohibition cases.
Marriage procedures:
- In Vietnam, the provincial-level People’s Committees of localities where the Vietnamese partners permanently or temporarily reside shall register marriages between Vietnamese citizens and foreigners. Where two foreigners residing in Vietnam apply for marriage registration, the provincial-level People’s Committee of the locality where either of them permanently resides shall register the marriage. After the provincial-level People’s Committee chairman signs the marriage certificate, the marriage registration ceremony shall be held at the provincial Department of Justice.
- Overseas, Vietnamese diplomatic missions or consulates in countries where the Vietnamese citizens reside shall register marriages between Vietnamese citizens and foreigners residing in such countries.
Marriages between Vietnamese citizens or between Vietnamese citizens and foreigners, which have already been registered at competent bodies of foreign countries in accordance with the law of such countries, shall be recognized in Vietnam, provided that by the time of their marriage, the Vietnamese citizens have not violated provisions of Vietnamese law on marriage conditions.
4. Divorces involving foreign elements
Under the 1986 Law on Marriage and Family, divorces between Vietnamese citizens and foreigners and the legal consequence thereof shall be settled according to the law of the country of their common residence at the time of filing the divorce application or according to the law of the country of their last common residence, if they do not have a place of common residence by that time, or according to Vietnamese law, if they have never had any place of common residence. Divorces between Vietnamese citizens and foreigners, which have been settled in foreign countries and in accordance with such countries’ law, shall be recognized in Vietnam. The recognition of foreign divorce judgments or decisions must comply with the provisions of the Ordinance on Recognition and Enforcement of Foreign Court Civil Judgments or Decisions in Vietnam.
The 2000 Law on Marriage and Family contains more specific and more open provisions. Marriages between Vietnamese citizens and foreigners, or between foreigners permanently residing in Vietnam shall be settled in accordance with Vietnamese law. In cases where the Vietnamese partners do not reside in Vietnam at the time of divorce, their divorces shall be settled according to the law of the countries of their common residence, or according to Vietnamese law if they do not have places of common residence. The handling of real property overseas upon divorce shall comply with the law of the countries where such real estate exists. Divorce judgments or decisions of foreign courts or competent agencies shall be recognized in Vietnam, oven if no application is filed for recognition of such divorce judgment or decisions in Vietnam.
5. Child adoption involving foreign elements
The 1986 Law on Marriage and Family provided mainly for the adoption of Vietnamese children by foreigners, under which foreigners wishing to adopt Vietnamese children had to satisfy the following conditions:
- Having full civil act capacity under the law of the countries of which they are citizens.
- Having good virtues and having not yet been deprived of the right to parenthood.
- Having good health and economic capability to ensure the nourishment of, care for and education of the adopted children.
- Being certified by competent bodies of the countries of which they are citizens that they have fully satisfied the conditions for adoption of children and that the adoption of Vietnamese children is recognized by the law of their respective countries.
The rights and obligations of adopters and adoptees and the termination of child adoption shall comply with the law of the countries of which the adopters are citizens; if the adoptive parents bear different citizenship, the law of the countries where the adopted children permanently reside shall apply.
In the 2000 Law on Marriage and Family, child adoption involving foreign elements has been provided in a broader and more specific manner to cover the adoption of Vietnamese children or foreign children residing in Vietnam by foreigners; and the adoption of foreign children by Vietnamese citizens.
In cases where foreigners apply for adoption of Vietnamese children or foreign children permanently residing in Vietnam, they must comply with the provisions of the law of Vietnam and the provisions of the law of the countries of which they are citizens. The adoption of foreign children by Vietnamese citizens, which has been already registered at competent bodies of foreign countries, shall be recognized in Vietnam.
In cases where child adoption involving foreign elements is carried out in Vietnam, the rights and obligations between the adoptive parents and the adopted children and the termination of child adoption shall comply with Vietnamese law. Where child adoption between Vietnamese citizens and foreigners is carried out overseas, the rights and obligations between the adoptive parents and the adopted children and the termination of child adoption shall comply with the law of the countries where the adopted children reside.
In a nutshell, the provisions of Vietnamese law on marriage and family relations involving foreign elements have demonstrated the spirit of complying with Vietnamese law, preserving the fine traditions of the Vietnamese people, respecting the law of other countries and international law and practices, and combining law with morality, human rights, and humanity, which have greatly contributed to the process of carrying out Vietnam’s open-door policies and international integration.-