>>Divorce under Vietnam's ancient laws
>>Husband-wife relationship in ancient laws of Vietnam
Phung Ngoc Duc
In Vietnam’s ancient code of Quoc Trieu Hinh Luat (The Royal Court’s Penal Code), the issue of marriage and family occupied an important position, being prescribed by many provisions through which we could realize the structure of the traditional Vietnamese family, particularly the family structure during Le Thanh Tong dynasty (1460 - 1497) politically characterized by the concentrated empiral powers and the dominant Confucian ideology.
An easily seen character was that the legal and moral elements were interwoven in Quoc Trieu Hinh Luat’s provisions on marriage and family. In other words, the then law provisions on many matters have become the traditional ethics which, though no longer prescribed by laws, still hold their moral and ethical values in the family relationships.
The typical feature of the family structure under the provisions of feudal law was that the absolute power fell into the hand of the husband and all other family members were obliged to obey. The husband might abandon his wife in case the latter committed one of the seven repudiation grounds (or “that xuat”): Being barren, jealous, infected with incurable diseases, adulterous, disrespectful of parents-in-law, garrulous and thievish. Meanwhile, the wife would be severely punished should she desert her husband. Similarly, children would be punished if they failed to show filial piety, and would not be allowed to get married or pregnant while being in mourning for their parents. The responsibility to educate children to observe the ethical values rest with the parents who would also be punished if they neglected their duty. Of the ten grave crimes, four concerned the family morality. They were “Ac nghich” (malicious) meaning beating and attempting to kill grand parents, parents, uncles, aunts, siblings; “Bat hieu” (undutiful) meaning denouncing, scolding grandparents, parents, disobeying the parents’ teachings, getting married while in mourning for parents, failing to organize funeral for deceased grandparents, parents; “Bat muc” (rude) meaning murder or sale of relatives, beating or denouncing husbands or relatives; and “Bat nghia” (disloyal).
What is prominent and noteworthy was the regime of property between husband and wife. Though having failed to specify the property ownership rights of the husband and the wife in any specific articles, Quoc Trieu Hinh Luat, through various provisions, touched upon three types of land property of the husband and the wife:
1. The land property of the wife
2. The land property of the husband
3. The land property of both the husband and the wife, created during their marital time.
The land property of the wife or the husband was that acquired respectively by her or him before their marriage, usually given by the parents or inherited from a relative. Yet, in fact, these types of land property were clearly determined only when the marriage terminated due to the decease of either spouse or only in case of divorce not due to the wife’s fault. During their marital life, all these types of land property were under the joint ownership of both the husband and the wife though the husband had the supreme power to decide on such property. So,
- Quoc Trieu Hinh Luat recognized the co-ownership of husband and wife over the land property.
- The personal ownership of the wife (or husband) would be dealt with only when the marriage terminated due to the decease of either spouse or only in case of divorce not due to the wife’s fault. If the wife was found at fault in the divorce, she would be deprived of the personal ownership right even to her personal land property.
Besides, Quoc Trieu Hinh Luat also stipulated the right to inherit land property between the husband and the wife. When either spouse died, the living one still had the right to retain his/her personal ownership right over his/her own land property. The common land property created during their marriage would be halved for each of the couple. The portion for the deceased would be divided together with his/her personal land property for the heirs. Quoc Trieu Hinh Luat prescribed the land property inheritance between the husband and the wife in three following specific cases where:
- Either spouse died while the couple had no children;
- The couple had child (children) while either of them died and so did the child (children);
- The couple had child (children) while either of them died and the living one remarried but had no child (children).
In all the three cases mentioned above, the wife (husband) was a first-rank heir. However, the wife would be deprived of the right to possess the portion of property inherited from her deceased husband should she re-marry another husband while it was not so for the husband who remained entitled to own the portion of property inherited from his deceased wife even when he remarried another wife.
At the same time, the ancient code also settled the question of property between the husband and the wife after their divorce. If a divorce was made with the wife being not at fault while the couple had no child, each spouse was entitled to own his or her personal land property acquired before their marriage and half of the land property formulated during their married life. If the couple had child (children) who, according to feudal family regime, usually stayed with the father, the wife would leave her personal land property to her child (children) while the husband would pay the wife a sum of money. If the wife was at fault for the divorce, she would be striped of her personal ownership right over her own land property as stipulated in Articles 401 and 481.
Quoc Trieu Hinh Luat’s provisions on property regime between the husband and the wife demonstrate the inequality between them in their rights to the family property though the wife’s right to co-ownership over the common property in the family during their marriage was recognized by law. Such inequality between the husband and the wife in their rights to the family property reflected the inequality between men and women under the feudal regimes. Directly born from the feudal regime, the limitations of the regime on property between the husband and the wife in Quoc Trieu Hinh Luat were historic and inevitable. Yet, only if such property regime between the husband and the wife was placed under the economic, political and social circumstances of the 15th century when Confucianism became the state religion, exerting its deeper and deeper impacts on not only the political life of the ruling class but also the ideology, sentiment and life of other social classes could we see the progressiveness of Quoc Trieu Hinh Luat. Under Confucianism, women were placed in an extremely inferior position in the family, almost having no civil rights and totally depending on their husbands. Meanwhile, Quoc Trieu Hinh Luat recognized the wife’s co-ownership over the common property of the family even though such right was limited and more or less nominal. The ancient code also recognized the wife’s ownership over her personal property acquired before her marriage. All such provisions of Quoc Trieu Hinh Luat reflected the Vietnamese nation’s fine tradition of respecting the women, which could not be found in any codes of the subsequent feudal dynasties in Vietnam.
In addition, Quoc Trieu Hinh Luat, in spite of its many harsh regulations against women, recorded some humane points when having permitted wives to divorce their husbands who had failed to fulfill their obligations to “share blanket and pillow”. It prescribed: “A husband who forsakes his wife for 5 months without having intercourse shall lose his wife.” Or the ancient code also stipulated that those who had abandoned their wives but obstructed other persons to marry their old wives or those who had been so deeply in love with their concubines that they had neglected their wives would also be penalized.
Quoc Trieu Hinh Luat devoted a whole chapter with 58 articles on marriage and family, which, together with other provisions on the personal relationships among the family members, brought to light the structure of the traditional Vietnamese families where the wives and the mothers had occupied a fairly equitable and important position. Found in all these was the expression of the preservation of the national identity with the ages-old customs and practices. Despite strong Confucian influences, the particulars and traditions of the Vietnamese families have been preserved, prescribed and protected by law. What the law-makers during the Le dynasty had made remain a valuable lesson, especially when we are heightening the preservation and promotion of the Vietnamese identity particularly in building modern and civilized families of the Vietnamese type.-