THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
No: 70/2001/ND-CP | Hanoi, October 03, 2001 |
DECREE
DETAILING THE IMPLEMENTATION OF THE MARRIAGE AND FAMILY LAW
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on Organization of the Government;
Pursuant to the 2000 Marriage and Family Law;
At the proposal of the Minister of Justice,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Subjects and scope of regulation of the Decree
This Decree prescribes in detail the implementation of the 2000 Marriage and Family Law, except the provisions on marriage registration, child adoption registration, marriage and family involving foreign elements, the application of the Marriage and Family Law to ethnic minority people, the determination of fathers and mothers for children born through scientific methods, and the sanctioning of administrative violations in the field of marriage and family, which shall be stated in other legal documents of the Government.
Article 2.- Counseling, reconciliation on marriage and family
1. Agencies and organizations shall have the responsibility to provide free-of-charge counseling on marriage and family to their members.
The State-run center for legal assistance shall provide free-of-charge counseling on marriage and family according to the provisions of law.
2. Agencies and organizations shall have to reconcile contradictions on marriage and family for their members, except for cases which must not be reconciled as prescribed by law.
3. Grassroots socio-political organizations and reconciliation groups shall have to reconcile marriage and family discords in their respective population quarters; and apply measures to persuade and educate individuals who commit acts of breaching the legislation on marriage and family.
Article 3.- Marital ages
Men at the age of twenty and women at the age of eighteen shall satisfy the conditions on marital ages as prescribed in Clause 1, Article 9 of the Marriage and Family Law.
Chapter II
RELATIONSHIP BETWEEN HUSBAND AND WIFE, PARENTS AND CHILDREN
Article 4.- Establishment, performance and termination of civil transactions related to the husband�s and wife�s properties
1. In cases where the establishment, performance or termination of civil transactions related to the husband’s and wife’s common properties of big value or common properties being sole means of living of the family; the establishment, performance or termination of civil transactions related to the disposition of properties under the private ownership of the husband or wife, which, however, have been put into common use and the yields and profits arising therefrom are sole means of living of the family, and the said transactions must comply with a certain form as prescribed by law, the agreement between husband and wife shall also have to follow that form (made in writing and signed by the husband and wife or notarized or authenticated…)
2. Regarding the civil transactions which need not necessarily follow a certain form as prescribed by law but relate to the common properties of big value or being sole means of living of the family or relate to the disposition of properties under the private ownership of the husband or wife, which, however have been put into common use and the yields and profits arising therefrom are sole means of living of the family, the establishment, performance or termination of such transactions must also be agreed upon in writing by the husband and wife.
3. The common properties of big value of the husband and wife mentioned in Clauses 1 and 2 of this Article shall be determined on the basis of the value proportion of those properties to the whole common properties of the husband and wife.
4. In cases where the husband or wife establishes, performs or terminates civil transactions related to the common properties defined in Clauses 1 and 2 of this Article without consent of the other party, the other party may request the court to declare such transactions invalid under the provisions of Article 139 of the Civil Code and the legal consequences shall be dealt with according to the provisions of Article 146 of the Civil Code.
Article 5.- Registration of properties under the common ownership of husband and wife
1. Properties under the common ownership of husband and wife, which, when being registered for ownership right, require that the names of both husband and wife must be inscribed according to the provisions of Clause 2, Article 27 of the Marriage and Family Law, include: houses, land use right and other properties, to which the ownership right must be registered as required by law.
2. The registration of properties under the common ownership of husband and wife as well as the rights thereto, for which the names of both the husband and wife must be inscribed according to Clause 1 of this Article, shall commence as from the effective date of this Decree.
3. In cases where the ownership right to a property under the common ownership of husband and wife had been registered before the effective date of this Decree with the inscription of the name of either husband or wife, the husband and wife may request the competent State agency to re-grant the property ownership right registration paper for the inscription of the names of both husband and wife thereon; if the husband and wife do not ask for the re-granting of the property ownership right registration paper, such property shall still belong to their common ownership; in case of a dispute, the party that claims the property under his/her ownership shall be obliged to prove it.
4. In case of a divorce or division of their common properties between husband and wife during the marital period, the party that receives the property in kind to which the ownership right or the use right has been registered with the inscription of the names of both husband and wife may request the property-registration agency to re-grant the property ownership right or property use right registration paper.
5. The Ministry of Justice shall coordinate with the concerned ministries and agencies in guiding the implementation of the provisions of this Article.
Article 6.- Division of the common properties during the marital period
1. The agreement on the division of the wife and husband’s common properties during the marital period as prescribed in Clause 1, Article 29 of the Marriage and Family Law must be made in writing, clearly stating the following contents:
a/ The reasons for the division of properties;
b/ The to be-divided properties (including immovable properties, movable properties and property rights), which should be clearly described or the value of which should be stated clearly;
c/ The remaining properties, which shall not be divided (if any);
d/ The time when the division of the common properties takes effect;
e/ Other contents, if any.
2. The written agreement on the division of the common properties between husband and wife must be clearly inscribed with the date of its making and signed by both husband and wife; such written agreement may be witnessed by other person(s) or notarized or authenticated at the request of the husband and wife or as prescribed by law.
3. In cases where the husband and wife fail to reach agreement on the division of their common properties, both or either of them may request the court to settle the case.
Article 7.- Effective time of the division of common properties
1. In cases where the written agreement on the division of the common properties of husband and wife does not clearly determine the time when the property division takes effect, the effective time thereof shall be counted from the date of making the agreement.
2. In cases where the written agreement on the division of the common properties of husband and wife is notarized or authenticated at their request, the property division shall take effect as from the date determined in the agreement; if the agreement does not determine that effective date, the division shall take effect as from the date such agreement is notarized or authenticated.
3. In cases where the written agreement on the division of the common properties of husband and wife must be notarized or authenticated as prescribed by law, the effective time shall be counted from the date such agreement is notarized or authenticated.
4. In cases where the court permits the division of the common properties under the provisions of Clause 3, Article 6 of this Decree, the division of the common properties of husband and wife shall take effect as from the effective date of the court’s decision permitting such division.
Article 8.- Consequences of the division of the common properties of husband and wife during the marital period
1. Yields or profits arising from the divided properties shall belong to the private ownership of each person, except otherwise agreed upon by husband and wife.
The yields or profits arising from the remaining common properties shall still belong to the common ownership of husband and wife.
2. The incomes generated from labor, production and business activities and other legitimate incomes of each party after the division of the common properties shall be the private property of husband or wife, except otherwise agreed upon by husband and wife.
Article 9.- Restoration of the regime of common properties of husband and wife
1. In cases where the husband and wife have already divided their common properties and later wish to restore the common property regime, they shall have to make a written agreement, clearly stating the following contents:
a/ The reasons for the restoration of the common property regime;
b/ The properties under the private ownership of each party;
c/ The properties under the common ownership of husband and wife, if any;
d/ The effective time of restoration of the common property regime;
e/ Other contents, if any.
2. The written agreement must be clearly inscribed with the date of its making and signed by both husband and wife; it may also be witnessed by other person(s) or notarized or authenticated at the request of husband and wife or as prescribed by law.
Article 10.- Effective time of restoration of the common property regime
1. In cases where the written agreement on the restoration of the common property regime of husband and wife does not clearly determine the effective time of restoration, that time shall be counted from the date of making the agreement.
2. In cases where the written agreement on the division of common properties of husband and wife is notarized or authenticated at their request, the written agreement on the restoration of the common property regime must also be notarized or authenticated and the restoration of the common property regime shall take effect as from the date determined in the written agreement; if the written agreement does not determine that effective date, the restoration shall take effect as from the date such agreement is notarized or authenticated.
3. In cases where the written agreement on the division of common properties of husband and wife must be notarized or authenticated under law provisions, the written agreement on the restoration of the common property regime must also be notarized or authenticated as prescribed by law and takes effect as from the date of its notarization or authentication.
Article 11.- Invalidating the division of common properties
At the requests of the persons with relevant rights and interests, the division of the common properties of husband and wife to shirk the performance of the following property obligations shall be declared invalid by the court:
1. The obligation to rear or provide support for other persons under law provisions.
2. The obligation to pay damages.
3. The payment obligation upon the court’s declaration of enterprise bankruptcy.
4. The tax obligation and other financial obligations towards the State.
5. The obligation to repay debts to other persons.
6. Other property obligations as prescribed by law.
Article 12.- Restriction of the right to request the division of heritage of husband or wife when one of them dies
The restriction of the right to request the division of heritage of husband or wife when one of them dies as prescribed in Clause 3, Article 31 of the Marriage and Family Law shall be effected as follows:
1. The period of time during which the division of heritage is not allowed under the provisions of Clause 3, Article 31 of the Marriage and Family Law shall not exceed 3 years.
The division of heritage, which shall seriously affect the life of the living spouse and the family, means the case where the division of heritage will make the living spouse and the family unable to maintain their normal life due to the loss of their residence or sole production means for generating incomes or other plausible reasons.
2. In cases where the heirs of the wife or husband fall in straitened circumstances, having no working capacity, no properties to subsist themselves and no one to support, the court shall consider and decide on the division of heritage after taking into account the interests of the living spouse as well as of other heirs.
3. In cases where the court does not permit the division of heritage yet under the provisions of Clause 1 of this Article, the living spouse shall only have the right to use or exploit the heritage so as to enjoy yields or profits arising therefrom and must preserve and maintain the heritage as his/her own property; must not perform transactions related to the disposition of the heritage if it is not consented by the other heirs.
In cases where the living spouse performs transactions in order to disperse, squander or cause damage and/or losses to the heritage, the other heirs shall have the right to request the court to declare such civil transactions invalid and divide the heritage; the living spouse shall have to pay damages to the other heirs according to the provisions of law.
4. The heirs of the wife or husband who has died shall have the right to request the division of the heritage in cases where the time limit prescribed in Clause 1 of this Article has not yet expired but the living spouse remarries another person.
Article 13.- Integration of the wife�s or husband’s private properties into the common properties
1. The integration of properties being dwelling houses, land use right and other properties of big value under the private ownership of the wife or husband into their common properties according to the provisions in Clause 2, Article 32 of the Marriage and Family Law must be recorded in writing with signatures of both husband and wife. Such record may be notarized or authenticated as prescribed by law.
2. The integration of private properties of one party into the common properties of husband and wife in order to shirk the performance of such party’s property obligations shall be invalidated according to the provisions of Article 11 of this Decree.
Article 14.- Performance of the obligation and right to care for and foster parents
The performance of children’s obligation and right to care for and foster their parents prescribed in Article 35 of the Marriage and Family Law shall be effected as follows:
1. If a family has many children, the children shall reach agreement among themselves on the person who directly care for and foster their parents and such agreement must be consented by the parents; those children who do not directly foster their parents shall have the obligation and right to visit, care for and support their parents according to the provisions of law.
2. In cases where the children fail to reach mutual agreement on the person who directly care for and foster their parents as prescribed in Clause 1 of this Article, they shall have the right to request the court to settle the case.
Article 15.- Persons entitled to request the court to restrict father’s and/or mother’s rights towards their minor children
The relatives of minor children defined in Clause 1, Article 42 of the Marriage and Family Law include their paternal grandfather and grandmother, maternal grandfather and grandmother, elder brothers and sisters by blood, paternal and maternal great-grandparents, uncles and ants by blood.
Chapter III
SUPPORT
Article 16.- Persons with actual capability to perform the supporting obligation and essential needs of the supported persons
1. The person with actual capability to perform the supporting obligation defined in Articles 51, 52 and 53 of the Marriage and Family Law is the one who has regular income or though having no regular income, still has properties, after subtracting necessary ordinary expenses for his/her life.
2. The essential needs of the supported person prescribed in Articles 51, 52 and 53 of the said Law shall be determined, based on the average living standards in the locality where he/she resides, including necessary ordinary expenses for meals, accommodation, clothing, schooling, medical examination and treatment and other necessary ordinary expenses to ensure the supported person’s life.
3. Where several persons share the same obligation to support one person and one of them has the actual capability while the others have no actual capability to fulfill the supporting obligation as prescribed in Clause 1 of this Article, the persons with actual capability shall have to perform the supporting obligation toward the person enjoying support according to the provisions in Article 52 of the Marriage and Family Law.
Article 17.- Agreement on the support
The person with supporting obligation and the supported person or the latter’s guardian shall reach agreement on the support. The agreement on the support may be made verbally or in writing, clearly stating the date when the supporting person starts to perform his/her supporting obligation, the support level and mode of performing the supporting obligation, as well as the alteration of the support level or mode.
Article 18.- Mode of performing the supporting obligation, support level
1. The person with supporting obligation and the supported person or the latter’s guardian shall reach agreement on the mode of performing the supporting obligation with money or properties. Priority is given to the performance of the supporting obligation on the monthly, quarterly, biannual or annual basis.
2. The performance of the supporting obligation by the mode of providing support in lump sum as prescribed in Article 54 of the Marriage and Family Law shall apply to the following cases:
a/ Under agreement between the supported person or his/her guardian and the person with supporting obligation;
b/ At the request of the person with supporting obligation and with the approval by the court;
c/ At the request of the supported person or his/her guardian and with the approval by the court in cases where the person with obligation to provide regular support commits acts of squandering properties or deliberately evading the performance of the supporting obligation though having properties to provide the support in lump sum;
d/ At the request of the person directly rearing children in case of divorce between husband and wife, whereby the properties divided to the party with supporting obligation may be deducted to support the children.
3. At the request of the person with supporting obligation, the lump-sum support amount may be deposited at a bank or assigned to the supported person or his/her guardian for management, except for cases otherwise agreed upon by concerned parties.
4. The person assigned to manage the lump-sum support amount shall have to preserve such property as his/her own one and may only make deduction therefrom to meet the essential needs of the supported person.
Article 19.- Additional support
In cases where the person given the lump- sum support falls in the seriously difficult circumstance due to accident or serious illness while the person performing the supporting obligation has the actual capability to provide support at a higher level, the latter shall have to provide additional support at the request of the supported person.
Article 20.- Coercing the performance of supporting obligation
1. In cases where the person with supporting obligation defined in the Marriage and Family Law does not voluntarily perform the supporting obligation, at the requests of the agencies, organizations and/or individuals stipulated in Article 55 of the said Law, the court shall issue decision to coerce the person with supporting obligation to perform his/her obligation. The time of performing the supporting obligation shall be agreed upon by the person with supporting obligation and the person enjoying the support; if they fail to reach agreement thereon, such shall be counted from the date stated in the court’s judgment or decision.
2. In cases where the person with supporting obligation as defined in the court’s decision does not voluntarily perform his/her obligation, the person entitled to the support or his/her guardian shall have the right to request the judgment-execution body to coerce the person with supporting obligation to perform such obligation. The time for performing the supporting obligation shall be counted from the date stated in the court’s judgment or decision.
3. Under the court’s decision, the agencies and/or organizations that pay wages, salaries and other regular incomes to the person with supporting obligation shall have to deduct the support amount and transfer it to the supported person or his/her guardian strictly according to the support level and mode, already agreed upon between the supported person or his/her guardian and the person with supporting obligation or as decided by the court.
Chapter IV
DETERMINATION OF FATHERS, MOTHERS AND CHILDREN; DETERMINATION OF NATIONALITIES OF ADOPTED CHILDREN
Article 21.- Determination of common children of husband and wife
1. Children born or conceived by the wife during the marital period as prescribed in Clause 1, Article 63 of the Marriage and Family Law shall be determined as common children of husband and wife.
Children born before the marriage registration date and recognized by their parents are also common children of husband and wife.
2. Children born within 300 days after the death of the husband or after the court’s judgment or decision on the husband’s and wife’s divorce takes legal effect are determined as their common children.
3. In cases where the husband or wife does not recognize a child as their common child as prescribed in Clauses 1 and 2 of this Article, they must supply proofs and such must be verified by the court.
Article 22.- Determination of nationalities of adopted children
The determination of adopted children’s nationalities prescribed in Clause 2, Article 75 of the Marriage and Family Law shall comply with the following stipulations:
1. The nationality of an adopted child shall be determined according to his/her natural parents’ nationality. In cases where his/her natural parents belong to two different nationalities, the child’s nationality shall be determined as the nationality of his/her natural father or natural mother according to the common practices or agreement between his/her natural father and mother.
2. Where natural parents of an adopted child cannot be identified, the adopted child’s nationality shall be determined according to the adoptive parents’ nationality; if the adoptive parents belong to two different nationalities, the adopted child’s nationality shall be determined according to the nationality of the adoptive father or adoptive mother according to the common practices or agreement between the adoptive father and mother; if later the adopted child’s natural parents are identified, his/her nationality may be re-determined at the request of the adult adopted child, his/her natural parents or adoptive parents.
Chapter V
DIVORCE
Article 23.- The land use right shall be the private property of husband or wife
Upon the divorce, the land use right acquired by each party before the marriage, from the transfer, conversion, inheritance or mortgage, or the right to use land assigned or leased to each party by the State shall continue to be the private property of each party; the land use right of one party shall still belong to that party, except otherwise agreed upon.
Article 24.- Division of the right to use land assigned by the State to the husband and/or wife
After the marriage, the right to use land, including contracted land, assigned by the State to both husband and wife or to either of them shall become the common property of the husband and wife; upon their divorce, the division of the right to use that land shall be effected as follows:
1. Regarding the right to use agricultural land for annual crops, land for aquaculture or salt making:
a/ In cases where both husband and wife have the demand to use that land and conditions to directly use it, the land use right shall be divided as agreed upon by the two parties; if they fail to reach agreement, they may request the court to settle the case according to the provisions of Article 95 of the Marriage and Family Law.
b/ In cases where only one party has the demand and conditions to directly use the land, he/she shall have the right to continue using the whole land after reaching agreement with the other party; if failing to reach agreement, the land-using party shall have to pay the other party part of the land use right value the latter is entitled to according to the level agreed upon by the two parties; if they fail to reach agreement, they may request the court to settle the case. If one party has the demand and conditions for directly using the land but cannot pay the other party part of the land use right value the latter is entitled to, the latter shall have the right to transfer his/her land use right to the third party, except otherwise agreed upon by the concerned parties.
2. The division of the right to use agricultural land for the planting of perennial trees, forestrial land for afforestation, residential land assigned by the State or special-use land being the common property of the husband and wife upon their divorce shall comply with the provisions of Article 95 of the Marriage and Family Law.
Article 25.- Division of the right to use land leased by the State to the husband and/or wife
After the marriage, the right to use land leased by the State to both husband and wife or either of them shall be the common property of husband and wife; upon their divorce, the division of the land use right shall be effected as follows:
1. In cases where husband and wife have paid the annual land rents and upon the divorce both parties have demand and conditions for directly using the land, the division of the land use right shall comply with the provisions of Article 95 of the Marriage and Family Law; the parties shall have to re-sign the land-renting contract with competent State agencies.
2. In cases where husband and wife have paid the annual land rents but upon their divorce only one party has the demand and conditions for directly using the land, such party may continue using that land but must re-sign the land-renting contract with the competent State agency, provided that the previous land-renting contract is made under the name of the other party or both parties; if both parties have invested in the properties available on the land, the land-using party shall have to pay the other party part of the value of properties already invested on the land, which the latter is entitled to at the time of dividing the properties upon the divorce, based on the properties and labor invested by that party, except otherwise agreed upon.
3. In cases where the husband and wife have paid land rents for the whole lease term, upon their divorce, they shall reach agreement on the use of the land and pay each other the land rent amounts they have already paid for the remaining lease duration.
In cases where one party is entitled to continue using the entire land area, that party shall have to pay the other party half of the land rent amount corresponding to the remaining land-lease duration, counting from the time of dividing the properties upon the divorce, except otherwise agreed upon. If the parties have invested in the properties available on the land, the land-renting party shall have to pay the other party part of the value of properties already invested on the land at the time of dividing the properties upon the divorce, based on the latter’s invested properties and labor, except otherwise agreed upon.
Article 26.- Division of the right to use converted, transferred, jointly inherited or mortgaged land of husband and wife
1. Upon the divorce, the division of the right to use converted, transferred, jointly inherited or mortgaged land of the husband and wife shall comply with the provisions of Article 95 of the Marriage and Family Law.
2. In cases where husband and wife receive as mortgage the land use right from a third person, upon their divorce, the right to receive the mortgaged land shall also belong to the common properties of husband and wife as prescribed in Article 95 of the Marriage and Family Law.
Article 27.- Division of the husband’s and wife’s right to use land assigned together to their household
In cases where both husband and wife have the right to use agricultural land for annual crops, aquaculture or salt making or forestrial land assigned to them and their household, upon their divorce, the land use right of the husband or wife and their children, who shall not live together with the household shall be separated and divided according to the provisions at Point a, Clause 2, Article 97 of the Marriage and Family Law.
Article 28.- Handling of the husband’s and wife’s interests upon their divorce regarding the dwelling house leased by the State
The handling of the husband’s and wife’s interests regarding the dwelling house leased by the State to one or both of them before or after their marriage shall comply with the following stipulations:
1. In cases where the house-renting contract is still valid, the concerned parties shall mutually agree on the continued renting of that house; if they fail to reach agreement and both parties have the demand to use the house, the case shall be settled by the court according to the provisions of Article 95 of the Marriage and Family Law.
In cases where the husband and wife have upgraded, repaired, renovated the house leased by the State or built a new house on the area of the house leased by the State, upon their divorce, the division of the right to use the house and the area already upgraded, repaired, renovated or newly built shall be agreed upon by the parties; if they fail to reach agreement, the case shall be settled by the court according to the provisions of Article 95 of the Marriage and Family Law. If only one party has the demand to use the house, the using party shall have to pay the other party part of the value of the right to rent the house from the State and part of value of the already upgraded, renovated, repaired or newly built house, which the latter is entitled to at the time of dividing properties upon the divorce.
2. In cases where the husband and wife have been transferred by the State the ownership right to the dwelling house, the division of the house upon their divorce shall comply with the provisions of Article 95 of the Marriage and Family Law.
Article 29.- Handling of the husband’s and wife’s interests upon their divorce regarding dwelling houses rented from other individuals
In cases where the husband and wife rent a house of individual(s), the division of the right to use that house must ensure the interests of the house owner and comply with the following stipulations:
1. In cases where the lease term has not expired, the concerned parties shall mutually agree on the area of the house that each of them is entitled to rent and make new contracts with the house owner.
2. In cases where the lease term has not expired but the house owner agrees to lease the house to only one party, the concerned parties shall reach agreement on the party that may continue to rent the house.
3. In cases where the rented house has been upgraded, repaired, renovated or added with a new construction with the consent of the house owner, the party that will continue living in the house shall have to pay the other party part of the value of the house that has been upgraded, repaired, renovated or added with new construction, which the latter is entitled to at the time of dividing properties upon the divorce.
4. In cases where the parties have additionally built a new house on the area independent from the rented area under agreement of the house owner and have paid the land use levy to the house owner, the division of that house shall comply with the provisions of Article 95 of the Marriage and Family Law.
Article 30.- Handling of the husband’s and wife’s interests upon their divorce regarding houses under ownership of either party
1. In cases where a house belonging to the ownership of either the husband or wife has been put to common use, upon their divorce, such house shall still belong to the ownership of the house owner, except otherwise agreed upon by the two parties. The husband or wife that owns the house shall have to support the other party in seeking a new accommodation if the latter faces difficulties and is unable to find new accommodation by him-/herself. The party that has no accommodation may stay in the old house for 6 months in order to find a new place of residence.
2. In cases where the house has been newly built, upgraded, repaired or renovated, the house owner shall have to pay the other party part of the value of the already built, upgraded, repaired or renovated house which the latter is entitled to at the time of dividing the properties upon their divorce.
Chapter VI
IMPLEMENTATION PROVISIONS
Article 31.- Guidance for implementation
The ministries and concerned agencies shall, within the ambit of their respective functions, tasks and powers, have to guide the implementation of this Decree.
Article 32.- Implementation effect
This Decree takes effect as from October 18, 2001.
Article 33.- Responsibility for implementation
The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT |