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Case Law Analysis: Vietnamese Marriage and Family Law

Case Law No. 53/2022/AL regarding the annulment of an illegal marriage

Dive into our detailed analysis of a recent case involving the annulment of an illegal marriage under Vietnamese law. This case highlights the legal recognition of de facto marriages and the implications of violating monogamy principles. Understand how the courts navigate complex family law issues and the application of both historical and contemporary legal provisions.

Key Highlights:

• Legal recognition of de facto marriages established before 1987.
• Implications of registering a new marriage while an existing marriage is legally recognized.
• Judicial reasoning and application of specific legal provisions and resolutions.

Read more on how these laws are applied in practice and the judicial decisions that shape family law in Vietnam.

Case Law No. 53/2022/AL

Regarding the annulment of an illegal marriage

Approved by the Judicial Council of the Supreme People’s Court on September 7^th, 2022, and published according to Decision No. 323/QĐ-CA dated October 14^th, 2022, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 04/2021/HNGĐ-GĐT dated July 7^th, 2021, by the Judicial Council of the Supreme People’s Court regarding the civil matter “Request to annul an illegal marriage”; the petitioner is Ms. Nguyen Thi S, with 03 people having relevant rights and obligations.

Content Location in the Case Law:

Paragraphs 2, 3, 4, 8, 9, 10, and 11 in the “Court’s Opinions” section.

Summary of the Case Law:

– Case Background:

A man and woman cohabited as husband and wife before January 3th, 1987 (the effective date of the 1986 Law on Marriage and Family), without registering their marriage but having held a wedding ceremony and lived together in Vietnam. They later emigrated and conflicts were arisen between them. Before finalizing their divorce, one party registered a marriage with another person at a competent Vietnamese state agency.

– Legal Resolution:

In this case, the Court must determine that the first relationship constitutes a de facto marriage. If this de facto marriage has not ended and one party registers a marriage with another person at a competent Vietnamese state agency, such marriage is illegal. The Court shall accept the petition to annul the illegal marriage.

Relevant Legal Provisions:

– Point c, Clause 2, Article 5; Point a, Clause 2, Article 10; Clause 1, Article 11; Clause 1, Article 122 of the 2014 Law on Marriage and Family.

– Clause 1, Article 29 of the 2015 Civil Procedure Code.

– Point a, Clause 3 of Resolution No. 35/2000/NQ-QH10 dated June 9^th, 2000, of the National Assembly on the implementation of the 2000 Law on Marriage and Family.

– Point d, Section 2 of Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3^rd, 2001, guiding the implementation of Resolution No. 35/2000/NQ-QH10 dated June 9^th, 2000, of the National Assembly on the implementation of the 2000 Law on Marriage and Family.

– Point b, Clause 4, Article 2 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of certain provisions of the 2014 Law on Marriage and Family.

Keywords:

“De facto marriage”; “Annulment of illegal marriage”.

CASE DETAILS:

In the petition to annul the illegal marriage dated June 28^th, 2017, and statements during the proceedings, Ms. Nguyen Thi S and her authorized representative, Ms. Luong Thi T, presented the following:

Ms. S and Mr. Pham Ba H lived together, held a wedding ceremony according to local customs, and registered their marriage at the People’s Committee of P Commune (now a ward), U City, Quang Ninh Province on November 23^rd, 1980. In April 1981, Ms. S and Mr. H moved to Hong Kong and later immigrated to Canada.

In 2008, they returned to Vietnam and resided at 24, Group 14, Area 03, T Ward, U City, Quang Ninh Province (household registration number 500296496 dated November 3^rd, 2014, head of household: Pham Ba H; relationship to head of household: wife Nguyen Thi S). During their cohabitation, they had three children: Mr. Pham Hong K (born in 1981), Ms. Pham Thi Thu H1 (born in 1984), and Ms. Pham Thi Thu H2 (born in 1991). Currently, their children reside in Canada.

Since 2011, Mr. H had an extramarital affair with Ms. Nguyen Thi L, causing frequent conflicts and disharmony in their marriage. Mr. H abused Ms. S and expelled her from the house, prompting Ms. S to visit her children in Canada for relief. Upon returning, she found that Mr. H had moved Ms. L and their child into the house and denied her entry despite her reporting to local authorities.

Ms. S later discovered that Mr. H and Ms. L had registered their marriage according to Marriage Certificate No. 09 dated April 17^th, 2017, issued by the People’s Committee of M City, Quang Ninh Province. Therefore, Ms. S requested the Quang Ninh Provincial Court to annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L.

Representation by the People’s Committee of M City, Quang Ninh Province:

The People’s Committee of M City asserted that the authority, procedures, and issuance of the Marriage Certificate for Ms. Nguyen Thi L and Mr. Pham Ba H were in accordance with legal regulations. If Ms. S’s petition to declare the marriage illegal is justified, the Quang Ninh Provincial Court should resolve the matter according to the law.

Decision of the Quang Ninh Provincial Court in the First Instance Civil Settlement No. 01/2018/QĐDS-ST dated February 2^nd, 2018:

– Accepted Ms. Nguyen Thi S’s petition to “annul the illegal marriage”.

– Annulled the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L as per Marriage Certificate No. 09 registered on April 17^th, 2017, by the People’s Committee of M City, Quang Ninh Province. Ordered Mr. H and Ms. L to cease living together as husband and wife.

– Granted custody of the child of Mr. Pham Ba H and Ms. Nguyen Thi L, Pham Thành Đ (born on December 12, 2015), to Ms. Nguyen Thi L until the child reaches 18 years of age. Mr. Pham Ba H is not obligated to provide child support. Mr. H retains visitation rights without obstruction.

Additionally, the first instance Court addressed court fees and the parties’ right to appeal. On February 23^rd, 2018, Ms. Nguyen Thi L filed an appeal against this decision.

At the Appellate Hearing:

Mr. Pham Ba H stated that in 1980, he knew Ms. Nguyen Thi S, but they neither held a wedding ceremony nor lived together in Vietnam. In 1981, when they moved to Hong Kong, they became close and started living together. Although they had children together, they did not register their marriage and maintained separate finances and assets. Therefore, the first instance court’s reliance on Resolution No. 35/2000/NQ-QH10 dated June 9^th, 2000, of the National Assembly to establish a de facto marriage between him and Ms. S was unfounded.

Mr. H asserted that his marriage with Ms. Nguyen Thi L was lawful as they had registered their marriage. Prior to the marriage registration, the competent authority had verified from multiple sources, including the Vietnamese consulate in Canada, that he had not registered a marriage with anyone else and was not currently in a marital relationship with anyone.

During the appellate hearing, Ms. Nguyen Thi L’s authorized representative, Mr. Đang Thanh V, requested the court to reject Ms. S’s petition to annul the lawful marriage between Mr. H and Ms. L. He stated that although Mr. H and Ms. S lived together in Hong Kong, they did not register their marriage. In 2008, Mr. H returned to Vietnam first, and he and Ms. S did not live together as husband and wife in Vietnam but only jointly organized their children’s weddings.

Appellate Court Decision:

In the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18, 2019, the Hanoi High People’s Court decided:

– To accept Ms. Nguyen Thi L’s appeal and amend the First Instance Civil Settlement Decision No. 01/2018/QĐDS-ST dated February 2, 2018, of the Quang Ninh Provincial People’s Court by rejecting Ms. Nguyen Thi S’s petition to annul the illegal marriage. The court recognized the marriage between Mr. Pham Ba H and Ms. Nguyen Thi L as lawful, as per Marriage Certificate No. 09 registered on April 17^th, 2017, by the People’s Committee of M City, Quang Ninh Province.

– Additionally, the appellate court decided on court fees and the costs of judicial entrustment. On February 6, 2020, Ms. Nguyen Thi S filed a petition requesting a cassation review of the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court, seeking to annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L.

Cassation Review:

On April 27^th, 2021, the Chief Justice of the Supreme People’s Court issued Cassation Decision No. 05/2021/KN-HNGĐ against the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court regarding the “Petition to annul an illegal marriage” by petitioner Ms. Nguyen Thi S; relevant parties include Mr. Pham Ba H, Ms. Nguyen Thi L, and the People’s Committee of M City, Quang Ninh Province.

The Chief Justice requested the Judicial Council of the Supreme People’s Court to conduct a cassation review, annul the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court, and uphold the First Instance Civil Settlement Decision No. 01/2018/QĐDS-ST dated February 2, 2018, of the Quang Ninh Provincial People’s Court. The execution of the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court was temporarily suspended pending the cassation review decision by the Judicial Council of the Supreme People’s Court.

Cassation Hearing:

At the cassation hearing, the representative of the Supreme People’s Procuracy recommended that the Judicial Council of the Supreme People’s Court accept the Cassation Decision No. 05/2021/KN-HNGĐ dated April 27^th, 2021, issued by the Chief Justice of the Supreme People’s Court.

COURT’S OPINIONS

[1] According to Official Letter No. 424/UBND dated September 7^th, 2017, from the People’s Committee of P Ward, U City, Quang Ninh Province, in response to the Quang Ninh Provincial People’s Court: “Currently, the original marriage registration book at the People’s Committee of P Ward only has records from 1989 onwards; records before 1988 are no longer available.

The marriage registration book of the People’s Committee of P Ward, U City, from 1989 to the present does not include a marriage registration for Mr. Pham Ba H, born in 1959, and Ms. Nguyen Thi S, born in 1960.” During the case proceedings, Ms. S did not provide a marriage certificate between her and Mr. H. Therefore, there is no basis to determine that Ms. S and Mr. H registered their marriage at the People’s Committee of P Commune in 1980.

[2] Based on the verification record dated November 13^th, 2014, of the People’s Committee of P Ward and witness testimonies, including statements from Mr. Bui Ngoc C (an elder neighbor of Ms. S’s parents) and Mr. Nguyen Van N (head of K Neighborhood, P Ward), it was confirmed that in 1980, Mr. Pham Ba H and Ms. Nguyen Thi S held a wedding ceremony and lived together; they later illegally migrated.

[3] According to the certified copy of the birth certificate of Mr. Pham Hong K, born on August 7, 1981, listing Pham Ba H as the father and Nguyen Thi S as the mother, it is established that Ms. S and Mr. H lived together in Vietnam, and Ms. S moved to Hong Kong after conceiving Mr. Pham Hong K.

[4] Furthermore, the Household Registration Book No. 500296496 issued by the M City Police Department on November 3^rd, 2014, and the Land Use Rights Lease Agreement dated April 13^th, 2015, at Notary Office No. 02, Quang Ninh Province, also indicate that Mr. Pham Ba H had a wife named Ms. Nguyen Thi S.

[5] According to point a, clause 3 of Resolution No. 35/2000/NQ-QH10 dated June 9^th, 2000, by the National Assembly: “a. In cases where the marital relationship was established before January 3^rd, 1987, the effective date of the 1986 Marriage and Family Law, without registration, the couple is encouraged to register their marriage. If there is a request for divorce, the court shall handle it according to the provisions on divorce in the 2000 Marriage and Family Law.”

[6] Point d, Section 2 of Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3^rd, 2001, stipulates: “A man and a woman are considered to be living together as husband and wife if they fulfill conditions for marriage under the 2000 Marriage and Family Law and meet one of the following conditions: They held a wedding ceremony when they began living together; their cohabitation was accepted by their family (one or both sides); their cohabitation was witnessed by others or organizations; they actually lived together, cared for, and assisted each other, and built a family together.”

[7] Point b, clause 4, Article 2 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP stipulates that a person is considered to have a spouse if “the person established a marital relationship with another before January 3, 1987, without registration, and has not divorced or there has been no event of their spouse’s death or declaration of their spouse as deceased.”

[8] Therefore, it is established that the relationship between Ms. S and Mr. H living together as husband and wife before 1987 is a de facto marriage. Although not registered, it is legally recognized as a marital relationship.

[9] Mr. H’s marriage registration with Ms. Nguyen Thi L as per Marriage Certificate No. 09 dated April 17^th, 2017, at the People’s Committee of M City, Quang Ninh Province, while still being in a marital relationship with Ms. Nguyen Thi S, violates the monogamy principle and the provisions of point c, clause 2, Article 5 of the 2014 Marriage and Family Law. The People’s Committee of M City, Quang Ninh Province, erred in registering the marriage between Mr. H and Ms. L.

[10] The first instance court correctly accepted Ms. S’s petition, annulled the illegal marriage between Mr. H and Ms. L, and resolved the consequences of the illegal marriage.

[11] The appellate court’s opinion that the 1987, 2000, and 2013 Marriage and Family Laws of Vietnam only govern the laws within Vietnam’s territorial space and time frame, and that Mr. H and Ms. S primarily cohabited illegally abroad before and after 1987, 2000, and before the 2013 law amendments, and therefore did not recognize Mr. H and Ms. S as a married couple but recognized the marital relationship between Mr. H and Ms. L as legal, is incorrect.

Because of all the above reasons,

DECISION:

Pursuant to point a, clause 2, Article 337, clause 1, Article 342, clause 2, Article 343, and Article 344 of the 2015 Civil Procedure Code:

1. Accept the Cassation Decision No. 05/2021/KN-HNGĐ dated April 27, 2021, by the Chief Justice of the Supreme People’s Court regarding the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court.
2. Annul the Appellate Civil Settlement Decision No. 12/2019/QĐPT-DS dated September 18^th, 2019, by the Hanoi High People’s Court.
3. Uphold the First Instance Civil Settlement Decision No. 01/2018/QĐDS-ST dated February 2^nd, 2018, by the Quang Ninh Provincial People’s Court.

CONTENT OF THE CASE LAW

“[2] Based on the verification record dated November 13rd, 2014, of the People’s Committee of P Ward and witness testimonies, including statements from Mr. Bui Ngoc C (an elder neighbor of Ms. S’s parents) and Mr. Nguyen Van N (head of K Neighborhood, P Ward), it was confirmed that in 1980, Mr. Pham Ba H and Ms. Nguyen Thi S held a wedding ceremony and lived together; they later illegally migrated.

[3] According to the certified copy of the birth certificate of Mr. Pham Hong K, born on August 7^th, 1981, listing Pham Ba H as the father and Nguyen Thi S as the mother, it is established that Ms. S and Mr. H lived together in Vietnam, and Ms. S moved to Hong Kong after conceiving Mr. Pham Hong K.

[4] Furthermore, the Household Registration Book No. 500296496 issued by the M City Police Department on November 3^rd, 2014, and the Land Use Rights Lease Agreement dated April 13^th, 2015, at Notary Office No. 02, Quang Ninh Province, also indicate that Mr. Pham Ba H had a wife named Ms. Nguyen Thi S.

…

[8] Therefore, it is established that the relationship between Ms. S and Mr. H living together as husband and wife before 1987 is a de facto marriage. Although not registered, it is legally recognized as a marital relationship.

[9] Mr. H’s marriage registration with Ms. Nguyen Thi L as per Marriage Certificate No. 09 dated April 17^th, 2017, at the People’s Committee of M City, Quang Ninh Province, while still being in a marital relationship with Ms. Nguyen Thi S, violates the monogamy principle and the provisions of point c, clause 2, Article 5 of the 2014 Marriage and Family Law. The People’s Committee of M City, Quang Ninh Province, erred in registering the marriage between Mr. H and Ms. L.

[10] The first instance court correctly accepted Ms. S’s petition, annulled the illegal marriage between Mr. H and Ms. L, and resolved the consequences of the illegal marriage.

[11] The appellate court’s opinion that the 1987, 2000, and 2013 Marriage and Family Laws of Vietnam only govern the laws within Vietnam’s territorial space and time frame, and that Mr. H and Ms. S primarily cohabited illegally abroad before and after 1987, 2000, and before the 2013 law amendments, and therefore did not recognize Mr. H and Ms. S as a married couple but recognized the marital relationship between Mr. H and Ms. L as legal, is incorrect.”

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