CASE LAW NO. 41/2021/AL On Termination of De Facto Marriages (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 41/2021/AL

On Termination of De Facto Marriages

Approved by the Judicial Council of the Supreme People’s Court on February 23^rd, 2021, and published under Decision No. 42/QĐ-CA dated March 12^th, 2021, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Appellate Civil Judgment No. 48/2010/DSPT dated July 29^th, 2010, of the Appellate Court of the Supreme People’s Court in Đà Nẵng regarding the case of “Division of Estate and Common Property Dispute” in Kon Tum Province between the plaintiff, Ms. Trần Thị Trọng P1, and the defendants, Mr. Trần Trọng P2 and Mr. Trần Trọng P3; with interested parties including 06 people.

Location of the Case Law’s Content:

Paragraphs 3 and 4 of the “Court’s Opinion” section.

Summary of the Case Law:

– Case Background:

A man and a woman lived together as husband and wife without registering their marriage. Subsequently, they ceased cohabiting, and before the Law on Marriage and Family of 1986 came into effect, one party began cohabiting with another person as husband and wife. Both the first and second relationships were de facto marriages.

– Legal Resolution:

In this instance, it must be determined that the first de facto marriage has ended.

Relevant Legal Provisions:

– Article 676 of the 2005 Civil Code (corresponding to Article 651 of the 2015 Civil Code);

– Resolution No. 35/2000/QH10 dated June 9^th, 2000, of the National Assembly on the implementation of the Law on Marriage and Family of 2000;

– Resolution No. 02/2000/NQ-HĐTP dated December 23^rd, 2000, of the Judicial Council of the Supreme People’s Court guiding the application of certain provisions of the Law on Marriage and Family of 2000.

Keywords:

“De facto marriage”; “Termination of de facto marriage”.

CASE DETAILS

According to the complaint dated October 8^th, 2004, and statements made during the case proceedings, Ms. Trần Thị Trọng P1 (represented by Mrs. Trần Thị S under a power of attorney) stated the following:

In 1969, Mr. Trần Thế T1 cohabited with Mrs. Tô Thị T2, which led the birth of two children, Trần Trọng P2 and Trần Trọng P3. Due to marital conflicts, Mrs. T2 relocated to Vũng Tàu and married another person. In 1985, Mr. T1 cohabited with Mrs. Trần Thị S, and they had a child together, Trần Thị Trọng P1.

In 1987, the People’s Committee of K Town granted Mr. T1 an area of 8,500m² of garden land in Ward Q (now Ward D), K Town. After receiving the land, Mr. T1 and Mrs. S continued living at Mrs. S’s parents’ house and soly cultivated trees on the designated land.

In 1993, Mr. T1 submitted a “request for building a house” stating that his family of five was living at his parents-in-law’s house and requested to be granted a plot of land to build a house; subsequently, Mr. T1 and Mrs. S built a house on this land. In 2000, Mr. T1 and Mrs. S applied for a certificate of house ownership indicating that the house built on the specified land belonged to them. On March 26^th, 2003, (Lunar Calendar) Mr. T1 passed away intestate, leaving all property to be managed and used by Mr. P2 and Mr. P3.

On October 8^th, 2004, Ms. P1 filed a lawsuit requesting the division of Mr. T1’s estate. In her statement dated April 15^th, 2009, Ms. P1 withdrew her request for the division of pigs, chickens, turtles, and the altar cabinet and requested the court to only re-measure the land area and not to conduct revaluation.

*Mrs. Trần Thị S also filed a request for the division of common property between her and Mr. Trần Thế T1. Mrs. S stated the following: During her cohabitation with Mr. T1, they acquired common property including a 36m² single-story house on a total area of 8,500m² of land (now reduced to 6,403m²), a Chinese motorcycle, two water pumps, 450kg of curry, five pigs, seventy chickens, twenty-two rabbits, a fish pond, and a tea cabinet – she requested the court to protect her legitimate rights.

In her statement dated April 15^th, 2009, Mrs. S requested the court to divide the common property between her and Mr. T1 and also divide Mr. T1’s estate among her, Ms. P1, Mr. P2, and Mr. P3 concerning the remaining land area, including the land sold by Mr. P3 and Mr. P2 to Mr. L and Mr. C.

* The defendants, Mr. Trần Trọng P2 and Mr. Trần Trọng P3, stated the following:

The aforementioned property were acquired by Mr. T1 and the two of them, and Mrs. S did not contribute any effort, so they disagreed with dividing the property with Mrs. S. Regarding Ms. P1’s inheritance claim, Mr. P2 and Mr. P3 requested a DNA test to determine the legal heirs.

* The interested parties stated the following:

– Mrs. Tô Thị T2 stated the following:

She and Mr. T1 married in 1969 (registered but the certificate was lost). They had two children together, Mr. P2 and Mr. P3. In 1982, she moved to Vũng Tàu and lived with Mr. Trần Sinh D, having three children together. In 1985, Mr. T1 and Mrs. S cohabited until Mr. T1’s death in 2003, and they had acquired some common property. If entitled to Mr. T1’s estate, her share would be given to Mr. P2 and Mr. P3.

– Mr. Chu Đình M state the following:

When Mr. T1 was alive, he borrowed VND 8,000,000 from Mr. M. Mr. P2 and Mr. P3 have fully repaid this amount. Mr. M has no further claims and requests the court to resolve the case according to the law.

Ms. Lâm Thị H state the following:

In 2002, Mrs. S borrowed VND 17,000,000 from Ms. H for house repairs and Mr. P3’s wedding. Mrs. S has repaid VND 8,000,000, and now owes VND 9,000,000. Ms. H requests the court to order Mrs. S to repay the remaining VND 9,000,000.

Mr. Lê Văn L state the following:

In 1999, Mr. P2 and Mr. P3 transferred ownership of a plot of land to Mr. L. The land has dimensions of 5m by 36m, resulting in a total area of 180m². Mr. L has completed the payment and taken possession of the land. He seeks permission to continue in utilizing the land.

In the First-instance Civil Judgment No. 04/2009/DSST dated October 29^th, 2009, the People’s Court of Kon Tum Province ruled:

Pursuant to Clause 5, Article 25 of the Civil Procedure Code, the court accepts the “Inheritance Division” lawsuit filed by Ms. Trần Thị Trọng P1 and the request for “Division of Estate and Common Property” filed by Mrs. Trần Thị S dated October 8^th, 2004, supplemented on April 15^th, 2009.

Pursuant to Articles 634, 636, 637, 640, 678, 679, 686; Clause 2, Article 688; Articles 738, 739, and 743; and Article 238 of the 1995 Civil Code, and Point b, Clause 1, Article 127 of the Land Law, the court rules as follows:

Mrs. Trần Thị S is entitled to a plot of land with an area of 3,201.5m² valued at VND 155,500,000 located at 506/25 P, Group 1, Ward D, City K (excluding the area of the water ditch), with the following boundaries:

– East: Adjacent to Alley P, 37.66m wide.

– West: Adjacent to the rubber plantation, 37.66m wide.

– South: Adjacent to Mr. K’s land, 85m long.

– North: Adjacent to Mrs. S’s land, 85m long.

And a plot of land with an area of 800.37m² (excluding the area of the water ditch), with the following boundaries:

– East: Adjacent to Alley P, 9.41m wide.

– West: Adjacent to the rubber plantation, 9.41m wide.

– South: Adjacent to Mrs. S’s land, 85m long.

– North: Adjacent to Mr. P3’s house, 85m long.

Located at 506/25 P, City K, valued at VND 38,875,000.

Mrs. S is responsible for repaying Ms. Lâm Thị H VND 9,000,000.

Mr. Trần Trọng P3 is entitled to:

A plot of land at 506/25 P, Ward D, City K, with an area of 800.37m² (excluding the area of the water ditch), valued at VND 38,875,000, with the following boundaries:

– East: Adjacent to Alley P, 9.41m wide.

– West: Adjacent to the rubber plantation, 9.41m wide.

– South: Adjacent to Mrs. S’s land, 85m long.

– North: Adjacent to Ms. P1’s land, 85m long.

Mr. P3 is entitled to a house comprising one main house and one auxiliary house with a total area of 54.64m², valued at VND 9,027,022, a Chinese motorcycle valued at VND 5,000,000, two water pumps valued at VND 800,000, and 450kg of curry valued at VND 5,000,000. The total value is VND 19,827,022.

Mr. P3 must pay Mrs. S VND 8,828,628.

* Ms. Trần Thị Trọng P1 is entitled to:

A plot of land with an area of 800.37m² (excluding the area of the water ditch), valued at VND 38,875,000, located at 506/25 P, Ward D, City K, with the following boundaries:

– East: Adjacent to Alley P, 9.41m wide.

– West: Adjacent to the rubber plantation, 9.41m wide.

– South: Adjacent to Mr. P3’s land and house, 85m long.

– North: Adjacent to Mr. P2’s land, 85m long.

Ms. P1 must pay Mr. P3 VND 4,959,372 and Mrs. S VND 1,875,000.

* Mr. Trần Trọng P2 is entitled to:

A plot of land with an area of 800.37m² (excluding the area of the water ditch), valued at VND 38,875,000, located at 506/25 P, Group 1, Ward D, City K, with the following boundaries:

– East: Adjacent to Alley P, 9.41m wide.

– West: Adjacent to the rubber plantation, 9.41m wide.

– South: Adjacent to Ms. P1’s land, 85m long.

– North: Adjacent to Mr. T’s land, 85m long.

Mr. P2 must pay Mrs. S VND 1,875,000 and Mr. P3 VND 4,959,372.

Mrs. Trần Thị S, Mr. Trần Trọng P2, Mr. Trần Trọng P3, and Ms. Trần Thị Trọng P1 are entitled to seek the competent authorities’ approval to obtain a land use rights certificate in accordance with the law.

The First-instance Judgment also includes decisions on court fees and the right to appeal.

On November 11^th, 2009, the defendants, Mr. Trần Trọng P2 and Mr. Trần Trọng P3, appealed, requesting the dismissal of the plaintiff’s lawsuit.

On November 12^th, 2009, Mrs. Tô Thị T2, a related party, appealed, requesting the dismissal of the plaintiff’s lawsuit.

According to the documents and evidence reviewed during the appellate trial, as well as the statements made by the parties and the outcome of the trial’s examination.

COURT’S OPINION:

[1] Mrs. Tô Thị T2 cohabited with Mr. Trần Thế T1 from 1969 and had two children together, Trần Trọng P2 and Trần Trọng P3. In 1982, Mrs. T2 moved to Bà Rịa – Vũng Tàu to live with Mr. Trần Sinh D, and they have had three children together since then.

[2] From 1985, Mr. Trần Thế T1 cohabited with Mrs. Trần Thị S, and they had a child together, Trần Thị Trọng P1, until Mr. T1’s death in 2003.

[3] Given that Mrs. Tô Thị T2 cohabited with Mr. T1 without registering their marriage and subsequently moved to Vũng Tàu in 1982 to cohabit with Mr. D and have children together, it can be concluded that the de facto marriage between Mr. T1 and Mrs. T2 had ended a long time ago. Therefore, they no longer have responsibilities towards one another, and Mrs. T2 is not entitled to Mr. T1’s estate, as correctly determined in the First-instance Judgment.

[4] Following his separation with Mrs. T2 in 1985, Mr. T1 entered into a relationship with Mrs. S. They cohabited as partners, had a child together, and acquired property jointly. The first-instance court rightly recognized this as a de facto marriage, awarding Mrs. S a share of the jointly held property and a portion of Mr. T1’s estate.

[5] The request by Mr. P2 and Mr. P3 for a DNA test to establish Ms. P1’s parentage to Mr. T1 was considered. However, current technological limitations in our country prevent DNA analysis of Mr. T1’s remains, rendering the test impossible. Fortunately, written acknowledgement of Ms. P1’s biological relation to Mr. T1 by Mr. Trần Trọng P2, Mr. Trần Trọng P3, and Mrs. Tô Thị T2 (Exhibits 52, 53, and 56) exist. These statements align with those of Ms. P1 and Mrs. S, along with supporting evidence like the birth certificate and witness testimonies. Therefore, the first-instance court’s recognition of Ms. P1’s inheritance rights regarding Mr. T1’s estate is well-supported.

[6] Considering that in 1987, Mr. Trần Thế T1 was allocated a garden plot by the People’s Committee of K Town at Ward Q (now Ward D) of K City, with an area of 8,500m². Currently, this plot includes a single-story house constructed by Mr. T1 and Mrs. S, along with other common property.

[7] An investigation into the land use history revealed that Mr. T1 and his children had previously subdivided and sold portions to various parties. An irrigation canal now bisects the property, reducing its original size. An on-site inspection report dated May 12^th, 2005, with an attached map, indicated the area managed by Mr. T1’s family was 5,610m², with an additional 540m² sold by Mr. P2 to Mr. L and Mr. C, for a total of 6,150m².

However, the first-instance court did not summon land management officials to re-measure the land before the trial on October 29^th, 2009. In 2009, Mrs. S requested a re-measurement, but the court readily accepted the parties’ (Ms. P1, Mr. P3, Mr. P2, and Mrs. S) claim that the remaining area was 6,403m², a figure lacking accuracy and potentially creating enforcement issues. Furthermore, the first-instance court did not require Mr. P2 to verify the location of the 3,000m² plot he allegedly purchased from Mr. A. Since these issues cannot be rectified by this appellate court, the first-instance judgment should be vacated, and the case remanded back to the first-instance court for a retrial.

[8] The parties are not required to pay appellate civil court fees.

In light of the foregoing,

Pursuant to Clause 1, Article 277 of the Civil Procedure Code.

IT IS DECIDED:

– To vacate the First-instance Civil Judgment No. 04/2009/DSST dated October 29^th, 2009, of the People’s Court of Kon Tum Province.

– To remand the case file to the People’s Court of Kon Tum Province for retrial according to general procedures.

– To refund the appellate court fee advances to the litigants.

The Appellate Judgment is legally effective from the date of pronouncement.

CONTENT OF THE CASE LAW:

“[3] Given that Mrs. Tô Thị T2 cohabited with Mr. T1 without registering their marriage and subsequently moved to Vũng Tàu in 1982 to cohabit with Mr. D and have children together, it can be concluded that the de facto marriage between Mr. T1 and Mrs. T2 had ended a long time ago. Therefore, they no longer have responsibilities towards one another, and Mrs. T2 is not entitled to Mr. T1’s estate, as correctly determined in the First-instance Judgment.

[4] Following his separation with Mrs. T2 in 1985, Mr. T1 entered into a relationship with Mrs. S. They cohabited as partners, had a child together, and acquired property jointly. The first–instance court rightly recognized this as a de facto marriage, awarding Mrs. S a share of the jointly held property and a portion of Mr. T1’s estate.”

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