PHAM DIEM
State and Law Institute of Vietnam

Under the current law of Vietnam, a marriage shall terminate in either of the following cases: either spouse has died or been declared dead; or divorce.

1. CASES WHERE EITHER SPOUSE HAS DIED OR BEEN DECLARED DEAD

Marriage termination is a natural consequence because marriage constitutes a personal relationship between two persons. In this case, Vietnamese law only adjusts personal and property consequences, whereby, in principle, when either spouse has died, the living spouse is entitled to enjoy the personal rights from such marriage such as the right to family name, given name, citizenship, and residence, regardless of whether such living spouse remarries.

Regarding property, under the 2000 Law on Marriage and Family, the husband and wife are entitled to inherit each other’s property according to the legal provisions on inheritance. When either spouse has died or been declared dead by the court, the living spouse shall manage their common properties, except where another person is designated in the decedent’s testament to manage the estate or the heirs agree to appoint another person to manage the estate. Where the estate must be divided as demanded and the estate division would seriously affect the lives of the living spouse and family, the living spouse shall have the right to demand the court to determine the estate shares to be enjoyed by the heirs but not to permit the estate division for a given duration. If past that duration determined by the court the living spouse has married another person, the other heirs shall have the right to request the court to divide the estate.

Where a spouse has been declared dead by the court, the marriage shall terminate as of the time the court’s decision takes legal effect. If later, the person who was declared dead by the court returns, the court shall issue a decision to cancel the death declaration. If his/her spouse has not yet married another person, their marital relationship shall be naturally restored. In case his/her spouse has married another person, the subsequently established marital relationship shall take legal effect.

2. CASES WHERE MARRIAGES TERMINATE DUE TO DIVORCE

Marriage can terminate due to divorce which is requested by either marriage partner or agreed upon by both partners and recognized by the court through its judgment or ruling. So, marriage termination in this case is a willful act of one or both spouses with the decision of the court which is competent to settle and make final decision on divorce. That the divorce is placed under the control of the State through courts aims to protect the legitimate interests of family members and society. With regard to divorce, Vietnamese law focuses on two major issues: the legal bases for divorce and the legal consequences of divorce.

a/ The legal bases for divorce

Grounds for divorce mean circumstances (or conditions) prescribed by law and only with the emergence of such circumstances can the court permit the divorce. Depending on the social situation in each period, the law has stipulated specific grounds for divorce.

Decree No. 159 of November 17, 1950, stopped short at settling a number of urgent problems with a view to liberating women, while having touched upon male-female equality in divorce in a ceremonial manner and having relied largely on the faults of the parties. It specified the following common grounds for both the husband and wife to apply for divorce:

-Adultery.

-Either marriage partner is sentenced to imprisonment.

-Either marriage partner is infected with insanity or incurable disease.

-Either marriage partner leaves the family for more than two years without plausible reasons.

-The husband and wife are not compatible and treat each other so badly that they can no longer live together.

When the country’s first law on marriage and family appeared in 1959, the bases for divorce were mentioned in a new and comprehensive manner, without being named separately. Under the Law, when the husband and wife agreed to divorce or when either of them requested the divorce, the court had to inquire into the causes of contradictions between the husband and wife as well as the motives of their divorce. Unless the two partners agreed to divorce, all cases of divorce requested by either the husband or the wife had to be first reconciled by the court. If their case was so serious that their conjugal life could not be prolonged and the marriage objective was not attained, the court could permit the divorce.

The 1986 and 2000 laws on marriage and family further developed the 1959 Law, with the following grounds for divorce:

First, the situation is very serious, the conjugal life cannot be prolonged, and the marriage objective cannot be attained. This means that the contradictions between husband and wife cannot be settled, and conjugal love and sentiment no longer exist, which has affected the normal life of every family member and the raising of their children, and that such marriage cannot be maintained as a basis for building democratic, harmonious, happy and sustainable families - the ultimate goal of marriage. So, based on realistic viewpoints, Vietnamese law provides grounds for divorce. All cases of divorce must be adjudicated by the court in an objective manner on the basis of accurate assessment of the practical situation of their conjugal life.

Second, the divorce is requested by either spouse or agreed upon by both marriage partners. If the divorce is requested by the wife or the husband, the court must proceed with investigation and conciliation before adjudication. The court must seek measures for conciliation in order to help the couple clearly realize their responsibilities towards their children. Conciliation is not only a legal proceeding but also reflects the Vietnamese people’s morals. The court shall permit divorce only when deeming that the conjugal life is so tense and serious that it cannot be prolonged and that the objective of marriage cannot be attained.

In case the divorce is agreed upon by both the husband and the wife, the court shall permit the divorce if conciliation fails and if it realizes that both sides truly wish to divorce.

Third, where the spouse of a person who was declared dead by the court applies for divorce, the court shall permit such divorce.

b/ The legal consequences of divorce

The divorce entails property division, and support for the needy partner after divorce the support of children as legal consequences.

Under current law, the division of property upon divorce shall be agreed upon by the involved parties. If no agreement can be reached, they may request the court to settle. The personal property of a party shall belong to his/her ownership. A partner who owns personal property must prove through the recognition of the other partner, through testament and documents, that such property is his or her own. If not, such property shall be the common property of both husband and wife and shall be divided according to the following principles:

-Common property shall, in principle, be divided into two, taking into account each party’s living conditions, property status, and contributions to the creation, maintenance and development of such property. Housework is considered social labor with income.

-To protect the legitimate rights and interests of the wife, minor children or adult children who are disabled or have lost their civil act or working capacity and have no property to live on.

-To protect the legitimate interests of each party in production, business and profession so that the parties can continue with production and business.

In case a divorced couple lives together with their parents, if their property in the entire property of the family cannot be identified, they shall be given a portion of the family’s property, depending on their contributions to the creation, maintenance and development of the family’s common property. The deduction of a portion from the family’s common property for the couple shall be agreed upon by the couple and their family; if not, they may request the court to settle.

Upon divorce, if the wife or the husband lives in poverty, she or he may request the ex-spouse to provide support according to his/her capability. The support amount and duration shall be agreed upon by the two parties or decided upon by the court if they fail to reach agreement.

After divorce, the husband and wife remain obligated to look after, take care of, educate and raise their minor children and adult children who are disabled, have lose their civil act or working capacity and have no property to live on. The spouse who does not directly raise the children shall be obliged to provide support for the children. The husband and wife shall agree on the person who directly raises the children and the rights and duties of each party toward their children; if not, the court shall decide to assign children to a party to bring them up, based on the children’s interests in all aspects. If children are aged full 9 years or older, their wishes must be taken into account. Children under three years old shall be assigned to the mother for nurture unless otherwise agreed upon by the two parties. For the children’s interests, at the request of one or both parties, the court can decide to change the person who directly raises the children if he or she has failed to ensure the children’s interests in all aspects or if desired by children aged full nine years or older. After divorce, the person who does not directly raise the children shall have the right to visit their children without obstruction by anyone.

Panoramically, divorce is one of the most sensitive and complicated issue in the family and legal life in Vietnam. According to the age-old traditions of Vietnamese, divorce has been considered a blameful phenomenon. Importance is always attached to the sustainability of the family and in Vietnamese families there have been no clear-cut distinctions between the personal and common property of a husband and wife.

At present, lawmakers in Vietnam have attached importance to the traditions, psychology and practices of the Vietnamese in order to help the law enter into life and contribute to the settlement of the question of divorce, which is on the rise in modern Vietnamese society, while preserving the fine traditions and morals of the Vietnamese people.-