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Pham Diem
State and Law Research Institute
In Vietnamese legislation during the French rule, the marital institutions were set in the Tonkin Civil Code promulgated in 1931 and the Central Vietnam Civil Code promulgated in 1936. By inheriting the Orient’s marriage and family traditions while more or less absorbing some elements of the West’s bourgeois legislation thereon, the then law-makers reconciled and combined the elements of customs and practices with the elements of modernity.
I. Regarding the marriage:
These two codes provided for the marriage conditions and procedures
1. The marriage conditions
According to the provisions of law, the marriage must satisfy all the following conditions:
- As far as the marriage ages were concerned: According to Articles 73 and 75 of the Tonkin Civil Code and the Central Vietnam Civil Code, males aged under 18 and females aged under 15 were not allowed to get married. However, there was an exception prescribed by law-makers that the age condition would not count for plausible reasons, but the males must not be under 15 and the females not under 12.
It can be realized that for the first time Vietnamese laws under the French rule set conditions on the marriage ages, a thing which had never been mentioned before in Vietnamese laws during the feudal time when the underage marriage regime was recognized as a matter of course. This, to a given extent, shows that the then law-makers reconciled the marriage-age conditions in the modern society with the underage marriage practice which had existed in the country for thousands of years with a view to making laws enter the practical life.
- Non-violation of cases of banned marriage, including:
+ The marriage between close relatives in direct lines of descent and people of collateral line (According to Article 74 of the Tonkin Civil Code) such as half-brothers and sisters, adoptive brothers and sisters, sisters- in-law and their husbands’ brothers, uncles and nieces, ants and nephews, cousins. Besides, the laws also forbade the marriage between men and their stepdaughters as well as between widows and their stepsons.
+ The ban on marrying concubines if the men had no first wives yet (Article 81 of the Tonkin Civil Code and Article 79 of the Central Vietnam Civil Code).
+ The ban on marriage while in mourning for one’s parents or husbands (the mourning duration was 27 months, or first wives (for 10 months). This was stipulated in Article 81 of the Tonkin Civil Code and Article 84 of the Central Vietnam Civil Code.
- The marriage must be voluntarily agreed by the two partners and consented by their parents. Article 76 of the Tonkin Civil Code stated that the marriage had to be agreed upon voluntarily by the two partners. This is a really progressive regulation as it had never been touched upon by the previous feudal laws. Yet, according to Articles 77 and 78 of both said codes, the marriage had to be consented by the parents of both partners; if the mothers disagreed while the fathers baptized the marriage, the couples, could proceed therewith; in cases where the parents have died or been unable to express their opinions, the marriage must be consented by the grandparents or only the grandfathers if the grandmothers protest against the marriage. If the grandparents and parents have all died or been unable to express their opinions and if either marriage partner aged under 21, the guardians’ consent is required.
2. On the marriage procedures
Both the Tonkin Civil Code and the Central Vietnam Civil Code (Articles 68, 69, 70, 71, 72, 82 and 83) stipulated that marriage had to go through two formalities as follows:
First, the boy’s family sends representatives to the girl’s to offer the wedding presents which will be accepted by the girl’s family. Article 68 of the Tonkin Civil Code stated: If the boy’s parents bring wedding presents to the girl’s parents in a solemn ceremony, such wedding-present offering would be valid. In the spirit of all these law provisions, the wedding-present offering is nothing but an engagement; so, if either party cancels the betrothal without any plausible reasons, it shall have to pay compensation to the other party.
Second, the marriage must be registered at the local administration. According to Article 82 of the Tonkin Civil Code, any marriage which is not reported to the local civil status mandarin shall be considered null and void without requiring any court declaration.
So, the marriage must go through the traditional and popular formalities and the State administrative procedures too.
II. On the divorce
1. Cases of divorce and the reasons therefor
- Marriage dissolution:
According to the two said codes, a marriage shall be dissolved in the following cases:
+ The marriage was not registered at the local administration (Article 82 of the Tonkin Civil Code and Article 83 of the Central Vietnam Civil Code).
+ The marriage was not voluntarily accepted by either partner or by both partners, namely forced marriage (Article 83 of the Tonkin Civil Code).
+ The marriage was effected under the prescribed ages, except where the wife has got pregnant (Article 84 of the Tonkin Civil Code).
+ The marriage was effected when either partner suffers from mental illnesses (Article 84 of the Tonkin Civil Code).
+ The marriage was effected between close relatives (Article 84 of the Tonkin Civil Code).
+ The woman was married but not yet divorced (Article 84 of the Tonkin Civil Code).
+ The man has not yet married the first wife but got the concubine, or the man has not yet divorced but married another wife, or has got married within the period of mourning (one year) for his deceased wife (Article 84 of the Tonkin Civil Code).
+ The marriage was effected while in mourning for one’s father, mother or husband (Article 84 of the Tonkin Civil Code).
+ Either marriage partner was mistaken for another person or deceived (Articles 86 and 87 of the Tonkin Civil Code and the Central Vietnam Civil Code).
+ The marriage was not baptized by the grandparents, the parents or the guardians, who many apply for marriage dissolution by the court (Article 88 of the Tonkin Civil Code).
So, marriage dissolution shall be effected when the marriage is carried out in violation of one of the marriage conditions (namely unlawful marriage)
- The reasons for divorce application
A husband may apply to divorce his wife if he has one of the following reasons (Article 118 of the Tonkin Civil Code and Article 117 of the Central Vietnam Civil Code):
+ The wife committed adultery.
+ The wife leaves her husband’s family and refuses to return though she has been forced to do so.
+ The concubine insults or assaults the first wife.
Meanwhile, according to Article 119 of the Tonkin Civil Code and Article 118 of the Central Vietnam Civil Code, a wife may apply to divorce her husband if she has one of the following reasons:
+ The husband was irresponsible, showing no care for his wife and children.
+ The husband leaves the family for more than two years without any plausible reasons.
+ The husband has driven his wife away from home without any reasons.
+ The husband acted against the order between the first wife and the concubine.
Article 121 of the Tonkin Civil Code and Article 120 of the Central Vietnam Civil Code stipulated that a couple might apply for a voluntary divorce if the two following conditions are met:
+ The marriage has lasted for two years or longer.
+ The divorce is consented by the husband’s parents (if they are still alive).
2. Legal consequences of divorce
The division of property after divorce was prescribed in Article 112 of the Tonkin Civil Code and Article 110 of the Central Vietnam Civil Code, under which the property shall be divided according to the regulations in the marriage pledge. If no pledge was made in the marriage, the marriage partners shall enjoy their personal property. If the wife’s personal property was sold out to cover expenses for the family life or for her husband, she is not entitled to reclaim them. Meanwhile, the common property shall be divided equally to the husband and the wife. If the wife is found being at fault in the divorce, she could enjoy only one-fourth of the common property.
Regarding the responsibility to bring up children after divorce, According to Articles 144 and 145 of the Tonkin Civil Code and Articles 142 and 143 of the Central Vietnam Civil Code, the court can decide with whom the children live while the other partners are obliged to provide financial support for the children.
3. Divorce procedures
According to Articles 122 and 123 of the Tonkin Civil Code and Articles 121 and 122 of the Central Vietnam Civil Code, divorces must be applied for in writing and the application therefor must be filed at the second-level courts (the provincial courts) in the localities where the applicants reside. Within 15 days after receiving the application, the chief judge shall have to summon the couple for conciliation. If the conciliation fails, the chief judge shall, within one subsequent month, have to investigate the case which shall be brought to trial before court 15 days after the end of the investigation.-