Pham Diem
State and Law Institute of Vietnam
As a tradition in Vietnam, the issue of marriage and family has been thought highly of, and the marriage and family relations have always been the special relations of personal sentiment, not merely civil relations. Consequently, the marriage and family law has been considered a branch of law in the current legal system of Vietnam, separated from the civil law though some elements such as inheritance relations are governed by the civil law.
In the former feudal regime, marriage and family relations were typically characterized by the establishment and protection of the patriarchic relations between husband and wife, between parents and children, between the eldest children and younger children, between male and female.
Following the victorious August 1945 Revolution, a democratic republic was established, thus creating a premise for revolutionization of marriage and family relations in the society and law. Though the young Democratic Republic of Vietnam could not immediately promulgate a law on marriage and family due to numerous difficulties and dangers upon the French colonialists’ return to re-impose their colonial yoke on the country, it promulgated on October 10, 1945, a decree, launching a movement for building a new cultured life in order to mobilize people to voluntarily abolish backward customs and practices, particularly those related to marriage and family. The recognition of equality between men and women in all aspects by the country’s first Constitution promulgated in 1946 laid a firm foundation for the gradual abolition of the feudal marriage and family regime and the building of a more democratic and progressive one.
The vigorous development of the anti-French colonialist war of resistance and the women liberation movement demanded the abolition of a number of institutions in the former regime’s civil law on marriage and family and also the promulgation of new principles on marriage and family. Therefore, the Democratic Republic of Vietnam Government promulgated the May 22, 1950 Decree on Civil Law and the November 17, 1950 Decree on Divorce. With 8 out of the total 13 articles devoted to the question of marriage and family, the first Decree set forth many new and progressive provisions under the then social circumstances, including:
-The abolition of patriarchialism in the family relations: Adults have the right to manage and dispose of their own property; adult children can decide on their marriage by themselves; parents have no right to place their children who make mistakes in confinement.
-The equality between men and women in families: Married women have full capacity to perform all civil acts without having to ask for their husbands’ permission.
-The abolition of the customary law banning marriage during the mourning of one’s parents or husbands.
-The provisions permitting out-of-wedlock children to recognize their biological parents.
The November 17, 1950 Decree initially abolished the inequality between husband and wife upon divorce while specifying reasons for divorce such as adultery, either partner’s imprisonment, either partner’s absence from home for more than two years without plausible reasons, etc. Regarding the procedures for divorce, the Decree provided that the people’s courts were competent to decide on divorces.
These two decrees greatly contributed to the abolition of the feudal marriage and family regime and to the liberation of women.
After the anti-French colonialist war of resistance was crowned with victory, the North was liberated and embarked on reconstruction. In 1959, the Democratic Republic of Vietnam State promulgated a new constitution, clearly stating: “Women are equal to men in all aspects, political, economic, cultural, social and family; the State protects the interests of mothers and children.” On December 29, 1959, the National Assembly passed the Marriage and Family Law which comprised 35 articles arranged in 6 chapters, on general principles, marriage, obligations and interests of husbands and wives, on relations between parents and children, and divorce. For the first time it affirmed four basic principles on marriage and family: (1) Free and progressive marriage; (2) Monogamy; (3) Equality between men and women, protection of women’s interests in family; (4) Protection of interests of children.
With the emergence of this new law on marriage and family, the issue of marriage and family was for the first time systematized in a concentrated, comprehensive and specific manner. It was a basic landmark of the emergence of the branch of marriage and family law in the legal system of Vietnam.
In 1975, the war of resistance against the US imperialists ended in success; the country was reunified. By then, the Socialist Republic of Vietnam State was unable to promulgate a new law on marriage and family; hence, the 1959 Law on Marriage and Family was also applied to the newly liberated South. Besides, the National Assembly Standing Committee promulgated on November 14, 1979, the Ordinance on Child Care and Education, specifying children’s fundamental rights as well as the responsibilities of the State, families and society towards children. In 1980, the first Constitution of the unified Vietnam was promulgated, containing an article on marriage and family, which stated: Families constitute the cells of a society; the State protects marriage and family; marriage is voluntary, progressive and monogamous; husbands and wives are equal; parents have the duty to bring up their children into good citizens for the society while children have the duty to respect and care for their parents; the state and the society do not recognize any discrimination among children.
After the national reunification, great changes were seen in all aspects of social life; hence, the provisions of the 1959 Law on Marriage and Family proved to be no longer suitable to the requirements of the new situation. Therefore, a new law was passed on December 29, 1986, by the National Assembly, which contained 10 chapters with 57 articles including many new and more specific ones on parent-child relationship, child adoption and guardianship, particularly marriage and family relationships between Vietnamese citizens and foreigners. It spelt out five basic principles in marriage: voluntariness and progressiveness; monogamy; husband-wife equality; protection of interests of parents and children; and protection of mothers and children.
Yet, since 1986 when the country embarked on “doi moi” (renewal), building a market economy and adopting an open-door policy and international integration, vigorous and substantive changes have been seen in all aspects of social life in Vietnam. A new law on marriage and family was passed on June 9, 2000, by the National Assembly. With 110 articles arranged in 13 chapters, the new law provided such major issues as marriage and termination of marriage; family relations; the determination of parents and children; child adoption; guardianship between family members; marriage and family relations involving foreign elements. It once again reiterated the basic principles in the marriage and family regime:
-Voluntary, progressive and monogamous marriage with equality between husband and wife;
-Marriage between Vietnamese citizens of different ethnicities, religions, between religious and non-religious people, between Vietnamese citizens and foreigners is respected and protected by law;
-Husband and wife have the duty to bring up their children; children are obliged to respect, care for and nurture their parents;
-Husband and wife are obliged to observe the policy on population and family planning;
-The state and the society do not recognize any discrimination between children, between sons and daughters, between offspring and adopted children, between in-wedlock and out-of-wedlock children.
- The state and families have the responsibility to protect women, mothers and children.
The 2000 Law on Marriage and Family has marked the development of Vietnamese legislation on marriage and family.
In short, the Vietnamese law on marriage and family has over the past 60 years (1945-2005) gradually developed and been much improved. The Vietnamese lawmakers have tried to step by step eradicate bad customs and practices which have existed for generations in Vietnam such as patriarchism, more respect for male than for female, while bringing into full play the nation’s fine traditions of attaching importance to the family and clan and to harmonious families with a view to making the law on marriage and family be typically Vietnamese and characterized by a civilized and modern nature.-