Prenuptial agreement around the world experiences for viet nam

These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been "taken" by a pri

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BACHELOR’S THESIS FACULTY OF INTERNATIONAL LAW

PRENUPTIAL AGREEMENT AROUND THE WORLD-EXPERIENCES FOR VIET NAM

STUDENT: PHAM THI KIEU PHUONG STUDENT CODE: 0955020318

SUPERVISOR: Dr DO THI MAI HANH

HO CHI MINH CITY - 2013

BOARD OF SPECIAL TRAINING PROGRAMS

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BACHELOR’S THESIS FORMAL EDUCATION TRAINING

COURSE 34 (2009 – 2013)

AROUND THE WORLD-EXPERIENCES FOR VIET NAM

STUDENT: PHAM THI KIEU PHUONG STUDENT CODE: 0955020318

SUPERVISOR: Dr DO THI MAI HANH

HO CHI MINH CITY - 2013

experiences for Viet Nam” is my work of research under Lecturer Dr Do Thi Mai Hanh’s supervision

I guarantee what I wrote in my thesis are originated in the process of researching materials and practice The data used in the thesis have been studied carefully and quoted from liable sources The quoted text is clearly noted and based on verification Sources of information referred in this thesis are cited fully according to regulations

of the faculty of international law, Ho Chi Minh University of law

I am responsible for what is illustrated in the thesis

Ho Chi Minh city, July 16th , 2013

Pham Thi Kieu Phuong

INTRODUCTION 1

CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT 5

1.1 Overview of Prenuptial Agreements around the world 5

1.1.1 History of Prenuptial Agreements 5

1.1.2 Definition of Prenuptial Agreement 10

1.2 Analyzing provisions in statutes of some national legal systems 12

1.2.1 Thailand 12

1.2.1.1 Conditions of prenuptial agreement 12

1.2.1.2 Condition of two parties in Prenuptial Agreement 15

1.2.1.3 Modification and Revocation 15

1.2.1.4 Time to enter into prenuptial agreement 15

1.2.1.5 Effect of Prenuptial agreement 16

1.2.2 France 16

1.2.2.1 Condition of Prenuptial agreement 16

1.2.2.2 Condition of two parties of Prenuptial Agreement 18

1.2.2.3 Modification and Revocation 19

1.2.2.4 Time to enter into prenuptial agreement 20

1.2.2.5 Effect of prenuptial agreement 20

1.2.3 United State 20

1.2.3.1 Condition of prenuptial agreement 20

1.2.3.2 Condition of two parties of Prenuptial Agreement 22

1.2.3.3 Modification and Revocation 22

1.2.4 China 23

1.2.4.1 Conditions of prenuptial agreement 23

1.2.4.2 Condition of two parties in Prenuptial Agreement 24

1.2.4.3 Modification and Revocation 24

1.2.4.4 Time to enter into prenuptial agreement 24

1.2.4.5 Effect of Prenuptial agreement 25

1.3 Common characteristic of Prenuptial Agreement 25

1.3.1 Enforcement of Prenuptial Agreement 25

1.3.2 Formalities of Prenuptial Agreement 25

1.3.3 Contents of Prenuptial Agreement 25

1.3.4 Two parties of Prenuptial Agreement 26

1.3.5 Time to enter into prenuptial agreement 26

1.3.6 Purpose of Prenuptial Agreement 26

1.4 Prenuptial agreement in Vietnam legal system 26

1.4.1 Prenuptial agreement in France‟s colony period 26

1.4.2 Prenuptial agreement in South Vietnam before April 30, 1975 30

1.4.3 Prenuptial agreement in the law of family and marriage from 1945 until nowadays 32

1.4.4 Reason for non-providing prenuptial agreement 34

1.5 Conclusion 35

CHAPTER 2: APPLICABLE OF PRENUPTAL AGREEMENT IN VIET NAM37 2.1 Practices in solving divorce disputes in Viet Nam 37

2.1.3 Dispute about carrying out property obligation in during the marriage

period 40

2.2 Ability to apply prenuptial agreement in Viet Nam 41

2.2.1 Economy in Viet Nam 41

2.2.2 Traditional culture and Public opinion 42

2.3 The necessary for provisions about prenuptial agreement in the Law on Marriage and Family of Vietnam 47

2.3.1 The outstanding problems of property settlement in divorce 47

2.3.2 The popularity of Marriage with foreigners 49

2.3.3 Current situation of making “prenuptial agreement” in Viet Nam 51

2.3.4 Establishment of gender equality regime in family and marriage 52

2.3.5 Points of view of law researchers and the issue of drafting about law on family and marriage 54

2.4 Proposal for family and marriage law 56

2.4.1 Advantages and disadvantages of Prenuptial agreement 57

2.4.2 Improvement for Vietnam legal system 58

2.4.2.1 Agreement-based property institution and legal property institution 61

2.4.2.2 Prenuptial agreement 62

2.5 Conclusion 66 CONCLUSION Error! Bookmark not defined

INTRODUCTION

1 The reasons for making the thesis

Comparative law is an interesting subject and studying of foreign law is a legal activity which brings many high efficiency and application However, it is often a difficult process, where not only the differences between the various opinions but also the lack of understanding of each other‟s way of legal thinking and legal concepts, may frequently constitute the greatest difficulty.1 Nowadays, countries in the world wish harmonization and unification of law, therefore, studying of foreign law becomes more important In today‟s modern, jurists can no longer limit themselves to studying the laws of their own country

Through the research process, it is realized that most of Western countries and some Asia countries have prenuptial agreement institution, such as England, Australia, Austria, Brazil, Canada, China, Finland, Germany, Greece, Ireland, Jamaica, Japan, Luxemburg, Netherlands, New Zealand, Philippines, Portugal, Russia, Spain, Sweden, Switzerland, United state, France, Thailand, China… Prenuptial agreement is a progress institution which allows spouses have freedom right to dispose of their property during marriage period and after divorce, this agreement must be established before marriage This institution brings many certain benefits for legislation field, application and execution of law of many countries in the world The author analyzes provisions about prenuptial agreement of some countries which represent for legal systems in the fond hope that will learn experiences from these countries Beside studying of foreign law, the author also studies about law of Vietnam and there are evidences to prove that prenuptial agreement existed for a long time ago in history of Vietnam legal system, but it was abolished by State

Realizing practice problems in Viet Nam and shortcomings of Family and Marriage Law 2000 about spouse‟s property institution, with the intention to figure out reasons for abolishing prenuptial agreement in Viet Nam and restore this

1 Michael bogdan, “comparative law”, kluwer norstedts juridik tano, (2000), pp.10

institution The author, thus decides to make the thesis: “Prenuptial agreement

around the world-experiences for Viet Nam”

2 Research situation

Prenuptial agreement is an institution which has been developing for thousands of years in many legal systems all over the world Therefore, in other foreign countries, there has been a large number of research works on this matter Here are some remarkable books and articles:

- Jesse Russell, Ronald Cohn, “Prenuptial Agreement”, Book on Demand, (2012) and Frederic P Miller, Agnes F Vandome, John McBrewster,

“Prenuptial Agreement”, VDM Publishing, 2011 These books are the collection of academic articles in legal journal

- Gary N Skoloff, Richard H Singer, Ronald L Brown, “Drafting Prenuptial Agreements”, Aspen Publishers Online, 1995 Prenuptial agreements have exploded over the past 20 years, not only among celebrities, but also for all types of people who desire to protect, manage, or enhance their personal, family, or business assets against foreseen and unforeseen circumstances

- Katherine E Stoner Attorney, “Prenuptial Agreements: How to Write a Fair

& Lasting Contract”, Nolo (2012) Write a prenuptial agreement and enter your marriage with eyes wide open Marriage is one of the few personal contracts in which your state dictates the term, unless you create your own customized premarital agreement Combining Nolo's legal expertise and plain-English writing, Prenuptial Agreements makes a potentially touchy subject easy to deal with while explaining how to create a valid contract

In Viet Nam, prenuptial agreement is a new issue Therefore, the number of research works on prenuptial agreement are relatively few Academic articles and thesis of certain scholars such as:

- Nguyen Hong Hai, “Recognition agreement-based property institution in family and marriage law of Viet Nam”, legal journal No.3, (1998)

- Master Bui Minh Hong, “Agreement-based property institution in marriage and family from foreign law to Vietnam law”, legal journal No.11 (2009)

- Pham Thi Linh Nham, “study about prenuptial agreement and ability to apply prenuptial agreement in Viet Nam”, Thesis, Ha Noi University of law, (2010)

3 The purpose of the thesis

First of all, the thesis will give a general understanding of some fundamental academic issues in relation to prenuptial agreement to define the concept, characteristics of prenuptial agreement besides, Introduce about history of prenuptial agreement in the world

Secondly, under a comparative view, the thesis will study about prenuptial agreement

of national legal systems

Thirdly, The author will give analysis about ability of Viet Nam to apply prenuptial agreement and the necessary of prenuptial agreement

Finally, the thesis will provide several recommendations for further improvement of current legal provisions in Viet Nam

4 The scope of research

In the thesis, the author just concentrates on researching the following points:

Firstly, the thesis will provide an overview of prenuptial agreement, include history of prenuptial agreement in the world; concept and characteristics of prenuptial agreement of some national legal system This scope is limited in provisions relate to prenuptial agreement of Thailand, France, United State and China

Secondly, the thesis analyzes existence of prenuptial agreement in history of Vietnam legal system This part is limited in regulations of legal documents from France‟s colony period to period from 1945 to 1959

Finally, thesis will clarify necessary of prenuptial agreement in respect with Vietnam legal system through practices and theoretical basis There is a certain limitation in some issues which relate to making detailed or supplementing prenuptial agreement for family and marriage law 2000

5 Methodology

For the thesis‟s purpose being mentioned above, the author will combine various kinds of legal methods as follows: Firstly, synthetic method is an effective method used to collect relevant information from different sources both preliminary and secondary: cases, books, legal documents, online material, etc and to give conclusion Secondly, there is enumerative method to list out essential information for arguments

of thesis Thirdly, the thesis has comparative method, under this method, the thesis figures out the similarities and differences about prenuptial agreement between different legal systems Besides, the thesis also uses case study to illustrate the Viet Nam‟s practice and prove for thesis„s arguments Finally, the author applies analytical

method throughout research working

6 Significance of the study

The thesis “Prenuptial agreement around the world-experiences for Viet Nam” is a systematic and comprehensive research work about prenuptial agreement in many legal systems Theoretical value of knowledge of foreign law about prenuptial agreement is a information source to help readers make reference The thesis also gives readers an overview about practices in Viet Nam and states necessary of prenuptial agreement for Vietnam legal system Generally, the thesis is a personal contribution for legislation field and improvement for current legal draft

7 Structure

The thesis is divided into two main chapters, as defined below:

Chapter 1: Introduction about prenuptial agreement

Chapter 2: ability to apply prenuptial agreement in Viet Nam – experiences for Viet Nam legal system

Conclusion

CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT

1.1 Overview of prenuptial agreements around the world

1.1.1 History of prenuptial agreements

Property agreements between engaged couples are nothing new People have

agreements might appear from ancient Roman under forms as “Nuptias non

concubitus sed consensus facit” and “Stipulatio” In an easily understanding way,

“Nuptias non concubitus sed consensus facit” means “marriage agreement” which wives did not depend on husbands in ancient Roman marriage “Stipulatio” means agreement about conditions of dowry The author shall analyze these forms in detail

Firstly, we shall study about “Nuptias non concubitus sed consensus facit”

sine manu (also known as Manus).3 For the cum manu marriage, The wife was placed

under the legal control of her husband; she entered her husband‟s family legally, the wife thus fell under her husband‟s potestas or his father, She had no rights of intestate inheritance in her own family; however she had rights of intestate inheritance in her

husband‟s, under cum manu marriage, the wife‟s property was her husband‟s or his

father‟s, She was legally related to both husband and children.4

For the sine manu

marriage, the wife was under the legal control of her father, in other words, the legal status of the bride did not change after the marriage, in regards to property rights The wife stayed in her natal family, She could thus inherit from her intestate father, she did not legally enter her husband‟s family, she still remained a member in her father‟s

2 Stanley Yorker, “Prenuptial Agreements: Thousands of Years of History”,

http://atlantablackstar.com/2012/07/26/prenuptial-agreements-thousands-of-years-of-history/ (last visited May

7, 2013)

3 John Peradotto, J John Patrick Sullivan, “Women in the Ancient World: The Arethus Papers”, State

University of New York Press, (1984), page 243

4 Virgil, The Aeneid, “First Century Rome”, the-Aeneid (last visited May 7, 2013)

https://sites.google.com/site/theaeneidrelationships/Marriage-in-family and the fact that in Roman law she was related neither to her husband or to her children, She thus had no rights of intestate inheritance from her husband Under the

conditions of what was called sine manu, the women was liberated from the

Latin which means that not sharing a bed but consent makes a marriage Mere cohabitation does not lead to a marriage, a marriage takes place only if there is consent.7 In other words, it is a form of marriage agreement in Ancient Roman

marriage when wives were not controlled under power of husbands, called is sine

manu Sine manu is established and obligated to base on “Nuptias non concubitus sed consensus facit” which is an agreement to determine wife‟s separate property before

marriage, base on Nuptias non concubitus sed consensus facit, the wife can control

her own property It is believed that marriage no longer required that a husband possess absolute ownership

Secondly, we shall get to know about “Stipulatio” Stipulatio, in Roman law,

is a form of contract based upon a simple question and answer It had no parallel in

other legal systems Stipulatio was developed, at first, with very strict rules Although

no witnesses were required, both parties had to be present during the entire proceedings, which had to be one continuous act The contract was oral and had to be

any lawful purpose: to promise a dowry, make a sale, engage one's services, and so

on.9 Dowries, often considered to be early prenuptial agreements, were mentioned in

seventh century writings as a necessity.10 One of the most important aspects of the

5 John Peradotto, J John Patrick Sullivan, “Women in the Ancient World: The Arethus Papers”, State

University of New York Press, (1984), pp.243-247

6 Perry, Joseph N “Canonical Concept of Marital Consent: Roman Law Influences”, 25 Cath Law 228 1980), pp 228

(1979-7 USLegal, Inc., About definition, Inc., facit/ (last visited May 7, 2013)

http://definitions.uslegal.com/n/nuptias-non-concubitus-sed-consensus-8 “Stipulatio”, encyclopedia britannica, http://global.britannica.com/EBchecked/topic/566546/stipulatio (last

visited July 7, 2013)

9 Alan Watson, “Roman Law and Comparative Law”, University of Georgia Press, (1991), pp.125

10 Art Cosgrove, “Marriage in Ireland”, College Press, (1985), pp.13-17

practical and business-like arrangement of Roman marriage was the dowry The dowry was a contribution made by the wife‟s family to the husband to cover the expenses of the household The parents were allowed to agree about dowries, a detailed list of the property might be made before the marriage took place 11 In the absence of special arrangements made on the constitution of the dowry, the fate of the dowry at the end of a marriage depended on its original source Where agreements

had been made in advance about disposal of the dowry, it was called “dos recepticia”

and was dealt according to the terms of the agreement Roman law distinguished

between “dos profecticia” given by the bride‟s father, this type of dowry could be

recovered by the donor in case of the marriage ended in death or divorce , and dowry

“dos adventicia” was given by the daughter herself, The wife usually recovered this

From above analyses state that “Nuptias consensus facit” and “stipulatio” are the

first forms of prenuptial agreement Although it did not have whole characteristics of prenuptial agreement as nowadays, it had aboriginal elements of prenuptial agreement

It is believed that prenuptial agreement was the result of historical influences It includes tradition, cultures, state power, freedom rights and religion ideas (here is Christianity- a religion which has important influence in society) At the beginning of Christianity, point of view of marriage under the influence of two traditions: Jewish tradition and Roman Tradition According to Jewish tradition, Religion played an important role in marriage, it was shown through ceremonies and good wishes.13Hebrew conducted marriage in two periods14: the first period was espousal, this period must recite the blessing; the second period was wedding ceremony which was conducted with many important ceremonies after a espousal year In fact, Roma

11

Judith Evans Grubbs, “Women and the law in the Roman Empire: a sourcebook on marriage, divorce and

widowhood”, Rouledge, (2002) , pp 97

12 Jane F Gardner, “Women in Roman Law & Society”, Indiana University Press, (1991), pp.105

13 Tran Chung Ngoc, “Catholic faith- Origin of Christianity”, Giao Diem publisher, (2000): Christianity

originated from Jews and appeared in area of Roma empire, until 61 Christianity became popular in Roma

14

Maurice Lamm, “The Jewish Way in Love and Marriage”, Harper and Row Publishers, (1980), pp 151

tradition emphasized agreement, the state of Roma did not intervene to ceremonies of marriage, they respected the habits and customs of folks on Roma Empire, Roman legislators assigned legal elements to prevent litigation cases Therefore, Anyone could conduct wedding ceremony in any form but they must have agreements If they did not have agreements open in public, they were considered as illegal spouse by the law.15 At the beginning, Christianity was under the influence of Jewish tradition much, so it did not mention to agreements in marriage.16

The 5th Century, Roma Empire collapsed and Germanic tribe established a large number of Feudalism western countries In this period, social structure was disordered, all power fell into Catholic Church Agreements in marriage were determined clearly in canon law In the 13th Century, the point of view of religion emphasized the agreement in marriage, it appeared a type of contract which had been established before marriage to provide rights and obligations of spouses This contract had whole characteristic of a prenuptial agreement Legal value of Prenuptial agreement was acknowledged in the first Civil Code in world- Napoleon Civil Code

1804

It is believed that Prenuptial agreement was popular with Christian who follow Roma Catholic Church, Because the point of view of Catholic Church did not allow divorce, this led to need methods in order to solve the problems when the spouse had conflicts One of the conflicts was property problem, therefore, prenuptial agreement was considered to be essential

The Hebrew marriage contract, called the “ketubah”, is at least 2,000 years old This contract was intended to protect women in case of divorce or widowhood by setting out the husband‟s financial obligation to the wife This agreement also made it expensive for a husband to divorce his wife and so made marriages more stable

By the ninth century in Europe, husbands were required to secure one-third of their property to their wives on their death as dower rights Wives sometimes brought

15 Stefano M.Grace, “Journal of transnataional law & policy” California University, (2003), pp 480

16 N Levison, The Jewish Background of Christianity (1932)

dowries of money or land to the marriage These arrangements were covered in an agreement drawn up before the marriage

In fifteenth century England, Edward IV reportedly had a prenuptial agreement with Eleanor Butler sometime between 1461 and 1464 Up to the 19th century in the United States, married women could not own property This began to change when New York State passed the Married Women‟s Property Act of 1848 Initially, women needed marriage contracts to guarantee their property in case of divorce or the husband‟s death.17

In summary, we can see that prenuptial agreement began to appear a long time ago around the world Prenuptial agreement first began from ancient Roma period with

first forms were “Nuptias non concubitus sed consensus facit” and “Stipulatio” Besides, Prenuptial agreement was a combination of many factors, it included

tradition, cultures, state power, freedom rights and religion ideas and Christianity was first origin religion of establishing prenuptial agreement However, at the beginning Christianity did not mention to agreements in marriage, until when Roma Empire collapsed and Germanic tribe established a large number of Feudalism western countries All power fell into Catholic Church Agreements in marriage was determined clearly in canon law It appeared a type of contract which had been established before marriage to provide rights and obligations of spouses This contract had whole characteristic of a Prenuptial agreement and legal value of prenuptial agreement was acknowledged in the first Civil Code in world- Napoleon Civil Code

1804 The Hebrew marriage contract, called the “ketubah”, is at least 2,000 years old Then it started spreading to other countries such as United Kingdom, United State and nowadays, may refer to: United Kingdom, France, United State, Germany, Thailand, etc

17 Stanley Yorker, “Prenuptial Agreements: Thousands of Years of History”,

http://atlantablackstar.com/2012/07/26/prenuptial-agreements-thousands-of-years-of-history/ (last visited July 7, 2013)

1.1.2 Definition of Prenuptial Agreement

Prenuptial agreement can be defined from various sources, such as definition from

legal dictionary, legal documents, research papers, etc

According to Black‟s Law Dictionary: “Prenuptial agreement (antenuptial

agreement) is a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been

"taken" by a prior spouse”.18

According to the one-stop online resource: A prenuptial agreement, also known as a premarital agreement, is a contract which the spouses or civil partners enter into before their union is legally joined Premarital contracts and prenuptial agreements are ancient concepts, having been practiced by many ancient civilizations and cultures Scholars theorize that the practice dates back to ancient Egypt; there are also mentions

of similar concepts in Roman, Jewish, Celtic, Middle Eastern, and European societies The concept of the protection of assets on the dissolution of marriage has been carried down through history and is thriving in modern society, largely unchanged from its original form.19

According to a research paper about “Guide to Wedding Ceremonies for Interfaith

Couples”: In the Jewish religion, marital contracts called “ketubahs” have been

around for more than two thousand years A ketubah is a special type of Jewish prenuptial agreement It is considered an integral part of a traditional Jewish marriage, and outlines the rights and responsibilities of the groom, in relation to the bride A Jewish legal marriage document with a legacy spanning two thousand years It is

18 Black‟s Law Dictionary (9th ed.) (2009), Thomson Reuters, United States of America, pp.546

19 Gwen Wark, “Definition of Prenuptial Agreements”, prenuptial-agreements.html (last visited May 10, 2013)

http://www.ehow.com/about_5057879_definition-typically signed before the wedding ceremony by the couple and at least two witnesses It was a legal document that detailed some of the rights and obligations of the bride and groom It offered some protection, in this case for the bride, in the event

of divorce.20 Traditionally, a “ketubah” is a legally binding marriage contract that

“verifies that the groom has acquired the bride and agrees to provide for her, and

includes a lien to be paid by the groom in case of divorce” It is signed by two

witnesses, and the bride‟s only participation is a choice either to accept or to reject the

(UPAA) in United State: “Premarital agreement means an agreement between

propestive spouses made in contemplation of marriage and to be effective upon marriage”

From above analyses, the author give definition about prenuptial agreement:

“Prenuptial agreement or antenuptial agreement, or premarital agreement is a

contract which is established between two persons who will marry legally Prenuptial agreement contains provisions about property problems and other problems such as spousal support, bring up children, plan for future…during the marriage or the end the marriage in death or divorce.”

In summary, there are many definitions about prenuptial agreement, but generally it must ensure basis elements below: Prenuptial agreement must be agreement between two persons who are about to marry, it must be established before marriage, provides property problems and other problems

20 “Guide to Wedding Ceremonies for Interfaith Couples”

http://www.interfaithfamily.com/life_cycle/weddings/The_Jewish_Marriage_Contract_%28Ketubah%29.shtml (last visited May 11, 2013)

21 “Guide to Wedding Ceremonies for Interfaith Couples”,

http://www.interfaithfamily.com/life_cycle/weddings/Sample_Ceremony_Structure.shtml (last visited May 11, 2013)

1.2 Analyzing provisions in statutes of some national legal systems

Prenuptial agreement is an institution which has existed for a long time around the world Nowadays, this institution is provided in most of countries in the world

We may refer to some foreign countries such as England, Australia, Austria, Brazil,

Canada, China, Finland, Germany, Greece, Ireland, Jamaica, Japan, Luxemburg, Netherlands, New Zealand, Philippines, Portugal, Russia, Spain, Sweden, Switzerland, United state, France, Thailand… The following, the author will analyze provisions about prenuptial agreement in legal system of Thailand, France, United State and China

1.2.1.1 Conditions of prenuptial agreement

Conditions of prenuptial agreement include three elements: enforcement of prenuptial agreement, formalities of prenuptial agreement and content of prenuptial agreement

Enforcement of Prenuptial Agreement

“Any clause in the prenuptial agreement contrary to public order or good morals, or stating that the relations between them as regards such assets are to be governed by foreign law shall be void”.22 It means that, prenuptial agreement must have the lawful content, it must comply with public order or good morals and properties are not regulated by foreign law This is prerequisite for the validity of prenuptial agreement

22 Section 1465 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book 5)

besides, the prenuptial agreement is void if not entered into the marriage register at the time of registering the marriage terms of the prenuptial; or if it was not performed

in writing and signed by both spouses with two witnesses at least and entered in the marriage register at time of marriage registration affirming that the prenuptial is thereto annexed.23 Those are conditions about procedures and formalities of prenuptial agreement which are stipulated in the Civil and Commercial Code of Thailand

Formalities of Prenuptial Agreement

“The prenuptial agreement is void if not entered into the marriage register at the time of registering the marriage terms of the prenuptial; or if not performed in writing and signed by both spouses and a minimum of two witnesses and entered in the Marriage Register at time of marriage registration affirming that the prenuptial is thereto annexed”.24 This states that prenuptial agreement must be in writing and signed by both spouses and a minimum of two witness and entered in the marriage register at time of marriage registration

Content of Prenuptial Agreement

Assets of husband and wife except in so far as they are set aside as Sin Suan Tua and

Sin Somros.25 Sin Suan Tua includes: assets or property belonging to either spouse

prior to marriage; Assets or property for personal use, dress or ornament appropriate for station in life, or tools necessary for performing the profession of either spouse; Assets or property acquired by either spouse during marriage through a will or gift;

Sin Somros includes assets acquired during marriage; assets acquired by either spouse

during marriage through a will or gift made in writing if it is stated by such will or document of gift to be Sin Somros; Fruits of Sin Suan Tua In cases of doubt in

regards to determining if a property is Sin Somros or not, it shall be presumed to be

Sin Somros.28 In managing the Sin Somros in the following cases, the wife and

husband have to be joint manager, or one spouse has to receive consent from the other: Selling, exchanging, sale with right to redemption, letting out assets on hire-purchase, mortgaging, releasing mortgage to mortgagor or moving the right of mortgage on immovable property or on mortgage able movable property

Developing or distinguishing the part or whole of the servitude, right of inhabitation, right of superficies, usufruct or charge on immovable assets Letting immovable assets for more than three years and lending money In addition, contributing a gift unless it is a gift for charitable, social and moral purposes and is suitable to the family condition and making a compromise Moreover, Submitting a dispute to arbitration Offering up the property or asset as guarantee or security with a competent official or the Court

The management of Sin Somros in a case other than cases listed in paragraph one can

be made by one spouse without having to obtain consent from the other.29 The

husband and wife can manage the Sin Somros, in different manners, in whole or part,

from provisions of Section 1476, given that the prenuptial agreement under Section

1465 and Section 1466 has been made In such case, the management of the Sin

Somros shall be made in accordance with the prenuptial agreement

In those situations, where the specifications of the management of the Sin Somros in the prenuptial agreement are only a part in difference to the clause of Section 1476, the management of the Sin Somros other than those specified in the prenuptial

agreement shall be made in accordance with Section 1476.30 We can understand that

content of prenuptial agreement includes clauses about managing Sin Suan Tua and maybe also provide about Sin Somros

1.2.1.2 Condition of two parties in prenuptial agreement

“Where the husband and wife have not, prior to their marriage, concluded a special contract concerning their assets, the relations between them as regards their assets shall be governed by provisions of this Chapter”.31 We can confirm that the parties of prenuptial agreement in Thailand are husband and wife, prior to their marriage, they have established prenuptial agreement

1.2.1.3 Modification and revocation

After marriage, the prenuptial contract cannot be changed except by authorization of the Court When there is a final order of the Court to effect the alteration of cancellation of the prenuptial agreement, the Court should inform the Marriage Registrar of the matter in order to have it entered into the Marriage Register.32

1.2.1.4 Time to enter into prenuptial agreement

According to section 1465 of the prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book 5): “Where the husband and wife have not, prior to their marriage, concluded a special contract concerning their assets, the relations between them as regards their assets shall be governed by provisions of this Chapter” This article states that prenuptial agreement will be established before

marriage, “Where the husband and wife have not, prior to their marriage, concluded a

special contract concerning their assets…”

1.2.1.5 Effect of Prenuptial agreement

The prenuptial agreement code of Thailand (the civil and commercial code of Thailand, book 5) does not mention time to take effect of prenuptial agreement

1.2.2 France

1.2.2.1 Condition of prenuptial agreement

Enforcement of Prenuptial Agreement

Napoleon Civil code 1804 does not mention directly to enforcement of prenuptial agreement However, see the Napoleon Civil code 1804, we can realize that, the prenuptial agreement must meet requirements about content and formality All matrimonial agreements shall be drawn up in an instrument before a notary public,

in the presence and with the simultaneous consent of all the persons who are parties thereto or of their agents At the time of the signature of the agreement, the notary public shall deliver to the parties a certificate on unstamped paper and without costs, stating his name and place of residence, the names, first names, occupations and residences of the future spouses, as well as the date of the ante-nuptial agreement That certificate shall state that it must be lodged with the officer of civil status before the celebration of the marriage Where the record of marriage mentions that an ante-nuptial agreement was not made, the spouses shall be, with regard to third parties, deemed married under the regime of general law, unless, in the transactions entered into with those third parties, they have declared that they made an ante-nuptial

Agreement.33

Formalities of prenuptial agreement

All matrimonial agreements shall be drawn up in an instrument before

notaire, in the presence and with the simultaneous consent of all the persons who

are parties thereto or of their agents.34 The formalities of prenuptial agreement in Napoleon civil code 1804 must be in writing and in the presence of notaire and with

the simultaneous consent of all the persons who are parties thereto or of their agents

At the time of the signature of the agreement, the notaire shall deliver to the parties

a certificate on unstamped paper and without costs, stating his name and place of residence, the names, first names, occupations and residences of the future spouses,

as well as the date of the ante-nuptial agreement That certificate shall state that it must be lodged with the officer of civil status before the celebration of the marriage35

Contents of Prenuptial Agreement

Spouse can choose community property or separate property regime Community property regime includes conventional community property regime and community property regime of Movables and Acquisitions Separate property regime includes regime of separate property and regime of participation in acquisitions

ante-nuptial agreement, modify statutory community by any kinds of agreement not contrary to Article 1387, 1388 and 1389 They may, especially, agree: the community shall include movables and acquisitions; it will be derogated to the rules relating to administration; one of the spouse will have the power to appropriate certain property on condition of an indemnity; one of spouses will have an appropriation clause; spouses will have unequal shares; there will be a universal community between them The rules on statutory community shall remain applicable on all questions which have not been the subject of the agreement of the parties.37

In terms of community property regime of Movables and Acquisitions:38 Where one of the spouses acquires an immovable after the ante-nuptial agreement, which contained a stipulation of community of movables and acquisitions, and before the celebration of the marriage, the immovable acquired during that interval enters the

35 Article 1394 of Napoleon Civil code 1804

36 See part 2, chapter 2, title V of Napoleon Civil Code 1804

37 Article 1497 of Napoleon Civil code 1804

38

See section 1, part II, chapter II, title V of Napoleon Civil code 1804

community, unless the acquisition was made in performance of some clause of the

So, ante-nuptial agreement can provide about spouses acquires an immovable after the ante-nuptial agreement

ante-nuptial agreement that their property will be separate, each of them keeps the administration, enjoyment and free disposal of his or her personal property.41 An ante-nuptial agreement shall determine the property to which the power granted to the survivor will relate It may fix methods of appraisal and terms of payment, except abatement in favour of beneficiary heirs where there is an indirect advantage.42

An ante-nuptial agreement may fix the bases of appraisal and the terms of payment

of a possible balance Having regard to those clauses and failing an agreement

between the parties, the value of that property shall be fixed by the tribunal de

grande instance.43

It may be agreed in an ante-nuptial agreement that the survivor of the spouses, or one of them if he or she survives, will be authorized to appropriate from the common stock, before any partition, either a specified sum, or a specified property in kind, or a specified quantity of a determined kind of property.44

1.2.2.2 Condition of two parties of prenuptial agreement

Legislation regulates conjugal association, with respect to property, only in default of special agreements, which the spouses may enter into as they deem proper, provided they are not contrary to public morals and to the following provisions.45 It means that the law does not regulate spouse‟s property relationship when they enter into a special agreement which is not contrary to public morals and to the provisions

39 Article 1498 of Napoleon Civil code 1804

40

See Chapter III, Title V of Napoleon Civil code 1804

41 Article 1536 of Napoleon Civil code 1804

42 Article 1391 of Napoleon Civil code 1804

43 Article 1512 of Napoleon Civil code 1804

44 Article 1515 of Napoleon Civil code 1804

45

Article 1387 of Napoleon Civil Code 1804

of the law This is antenuptial agreement or prenuptial agreement and an ante-nuptial agreement must be drawn up before the celebration of the marriage and may take effect only on the day of that celebration.46 The parties of prenuptial agreement, thus, are couples who are about to marriage

1.2.2.3 Modification and Revocation

Amendment ante-nuptial agreement is made before marriage

Amendments made in ante-nuptial agreements before the celebration of the marriage must be established by an instrument drawn up in the same forms Furthermore, no change or counter-letter is valid without the presence and the simultaneous consent of all the persons who were parties to the ante-nuptial agreement, or of their agents Any amendments or counter-letters, even provided with the forms prescribed by the preceding article, shall be without effect with respect to third parties, unless they were drawn up at the end of the original of the ante-nuptial

agreement; and a notaire may deliver neither an executory nor an office copy of the

ante-nuptial agreement without transcribing the amendment or counter-letter at the end After the celebration of the marriage, there may be no amendment to the matrimonial regime except by the effect of a judgment, either on the application of one of the spouses, in the case of separation of property or of other judicial protective measures, or on joint petition of both spouses, in the case of the following Article.47 It means that amendment an ante-nuptial agreement must be made in writing, same form with original and that amendment an ante-nuptial agreement need presence and consent of all the persons who were parties to the ante-nuptial agreement, or of their agents Amendment an ante-nuptial agreement will be effect with respect to third parties, if they they were drawn up at the end of the original of the ante-nuptial agreement

Amendment ante-nuptial agreement is made after marriage

After two years of application of a matrimonial regime, either conventional or statutory, the spouses may agree in the interest of the family to amend it or even to change it entirely, by a notarial instrument, which shall be submitted to the approval of the court of their domicile All persons who were parties to the modified agreement shall be summoned in the proceedings in approval; but not their heirs, if they have died.48

1.2.2.4 Time to enter into prenuptial agreement

“An ante-nuptial agreement must be drawn up before the celebration of the

So, prenuptial agreement must be established before the celebration of the marriage

1.2.2.5 Effect of prenuptial agreement

marriage and may take effect only on the day of that celebration.50 Therefore, it

implies that marriage is compulsory to prenuptial agreement takes effecct

1.2.3 United State

1.2.3.1 Condition of prenuptial agreement

Enforcement of Prenuptial Agreement

48

Article 1397 of Napoleon civil code 1804: “After two years of application of a matrimonial regime, either conventional or statutory, the spouses may agree in the interest of the family to amend it or even to change it entirely, by a notarial instrument, which shall be submitted to the approval of the court of their domicile All persons who were parties to the modified agreement shall be summoned in the proceedings in approval; but not their heirs, if they have died An approved change has effect between the parties from the judgment and, with regard to third parties, three months after mention of it has been entered in the margin of both copies of the record of marriage However, even failing that mention, an amendment is effective against third parties where,

in the transactions entered into with them, the spouses have declared that they have amended their matrimonial regime;

Mention of the judgment of approval shall be made on the original of the amended ante-nuptial agreement The application and the decision of approval shall be published on the terms and subject to the penalties

provided for in the Code of Civil Procedure; furthermore, where one of the spouses is a merchant, the decision shall be published on the terms and subject to the penalties provided for by the regulations relating to the commercial register Where there has been a fraud on their rights, creditors may resort to a third party

application for revocation of the judgment of approval in the way provided for in the Code of Civil Procedure.”

49 Article 1395 of Napoleon Civil Code 1804

50

Article 1395 of Napoleon Civil Code 1804

A premarital agreement is not enforceable if the party proves that: “that party did not execute the agreement voluntarily; or the agreement was unconscionable when it was executed and, before execution of the agreement, that party: was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law”.51

If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.52

Formalities of prenuptial agreement

According to section 2 of Uniform Premarital Agreement Act: “A Premarital

agreement must be in writing and signed by both parties It is enforceable without consideration.” One of the elements of a contract is that it must be in the form

required by law Typically, written contracts have been preferred in common law legal systems For the prenuptial agreement or premarital agreement, the law requires that it must be in writing and signed by both parties in order to be enforceable by a court and it is legal evidence has high persuasion

Content of prenuptial agreement

Parties to a premarital agreement may contract with respect to: the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, tranfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortage, encumber, dispose of, or otherwise manage and control property; the

disposition of property upon separation, marital dissolution, death, or the occurrence

or nonoccurence of any other event; the modification or elimination of spousal support; the making of a will, trust or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement and any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty53 The right of a child to support may not be adversely affected by a premarital agreement

1.2.3.2 Condition of two parties of prenuptial agreement

According to section 1 of UPAA: "Premarital agreement means an agreement

between prospective spouses made in contemplation of marriage and to be effective upon marriage” Thus, the parties of prenuptial agreement or premarital agreement

are “prospective spouses made in contemplation of marriage” The parties of

prenuptial agreement can not be persons who live together but who do not contemplate marriage or who do not marry In addition, a premarital agreement is a civil contract Requirements for any other contract, the parties must have the capacity

in order to enter into a binding agreement the parties are also under the influence of other provisions of law

1.2.3.3 Modification and Revocation

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties The amended agreement or the revocation is enforceable without consideration.54 We know that the formalities of prenuptial

agreement must be in writing and signed by both parties.55 As a consequence, the formalities of execution for an amendment or revocation of a premarital agreement must be in writing and signed by the parties, the same as its original execution

53 section 3 of UPAA (Uniform Premarital Agreement Act)

54 section 5 of UPAA (Uniform Premarital Agreement Act)

55

section 2 of UPAA (Uniform Premarital Agreement Act)

1.2.3.4 Time to enter into prenuptial agreement

in contemplation of marriage and to be effective upon marriage”.56 It means that, prenuptial agreement must be established before marriage “…prospective spouses made in contemplation of marriage and to be effective upon marriage…”

1.2.3.5 Effect of Prenuptial agreement

understand that a marriage as a prerequisite for the effectiveness of a premarital agreement or prenuptial agreement

1.2.4 China

1.2.4.1 Conditions of prenuptial agreement

Enforcement of prenuptial agreement

Marriage must be based upon the complete willingness of both man and woman Neither party may use compulsion on the other party, and no third party may

if the man and the woman are lineal relatives by blood, or collateral relatives by blood

up to the third degree of kinship; or if the man or the woman is suffering from any disease which is regarded by medical science as rending a person unfit for marriage.59

Formalities of prenuptial agreement

all the agreement requires is that it has to be in writing Both the man and the woman desiring to contract a marriage shall register in person with the marriage registration office If the proposed marriage is found to conform with the provisions of this Law,

56 section 2 of UPAA (Uniform Premarital Agreement Act)

57 section 4 of UPAA (Uniform Premarital Agreement Act)

58 Article 5 of Marriage Law of the People's Republic of China 2001

59 Article 7 of Marriage Law of the People's Republic of China 2001

60

Article 19 of Marriage Law of the People's Republic of China 2001

the couple shall be allowed to register and issued marriage certificates The and-wife relationship shall be established as soon as they obtain the marriage certificates A couple shall go through marriage registration if it has not done so.61

husband-Content of prenuptial agreement

The husband and the wife may conclude an agreement that the property acquired by them during the period in which they are under contract of marriage and the property acquired before marriage shall be in their respective possession separately or jointly or part of the property shall be in their possession separately and the other part jointly Such an agreement shall be in written form The agreement concluded by the husband and the wife with regard to the property acquired during the period in which they are under contract of marriage and the property acquired before marriage shall be binding on both parties Where the husband and the wife agree that the property acquired by them during the period in which they are under contract of marriage shall be in their possession separately, debts contracted by the husband or the wife shall be paid off with the property in the possession of the party of the husband or the wife, if the third person knows that there is such an agreement.62

1.2.4.2 Condition of two parties in prenuptial agreement

No marriage may be contracted before the man has reached 22 years of age and

1.2.4.3 Modification and Revocation

Marriage Law of the People's Republic of China 2001 does not mention to modification and revocation prenuptial agreement

1.2.4.4 Time to enter into prenuptial agreement

Marriage Law of the People's Republic of China 2001 does not mention to modification and revocation prenuptial agreement

61 Article 19 of Marriage Law of the People's Republic of China 2001

62 Article 19 of Marriage Law of the People's Republic of China 2001

63

Article 6 of Marriage Law of the People's Republic of China 2001

1.2.4.5 Effect of Prenuptial agreement

Article 19 Marriage Law of the People's Republic of China 2001 provides that such

an agreement shall have binding force on the Husband and Wife It has the same effect as a civil contract.64

1.3 Common characteristic of Prenuptial Agreement

Prenuptial Agreement is a type of civil contract and must, therefore, comply with ordinary principles of contract law Essential characteristics of The prenuptial agreement are given below:

1.3.1 Enforcement of Prenuptial Agreement

Prenuptial agreement must have consent of the parties and have content lawful and form comply with the law

1.3.2 Formalities of Prenuptial Agreement

Prenuptial agreement must be in writing and signed by both parties, If these legal formalities are not completed, it cannot be treated as a valid agreement

1.3.3 Contents of Prenuptial Agreement

Although content of Prenuptial Agreement can vary widely, it must contain clauses relate to property It can provide ways to determine separate property or community property In addition, Prenuptial agreement may comprise of other content, such as primary residences, vacation homes, vehicles, material possessions It may outline how debts incurred before the marriage will be paid after the union is solemnized, and specify alimony or child support in the event of a divorce A prenuptial agreement may also contain clauses relating to the care of a terminally ill spouse as well as their wishes upon death, acting in part as a will.65

64

Zhang Xian Chu, “Prenuptial Agreements in China”, International Academy of Matrimonial Lawyers, http://www.iaml.org/library/iaml_law_journal/back_issues/volume_1/prenuptial_agreements_in_china/index.ht

ml (last visited June 15, 2013)

65 Gwen Wark, “Definition of Prenuptial Agreements”, prenuptial-agreements.html (last visited May 10, 2013)

http://www.ehow.com/about_5057879_definition-A typical prenuptial agreement will contain provisions for the event of a divorce, it can set out terms for caring for a sick or terminally ill partner, and it can also act as a will in directing the surviving partner upon the death of her spouse

1.3.4 Two parties of prenuptial agreement

The parties of prenuptial agreement is between two persons who are about to marriage legally They have legal capacity to carry out rights and obligations provided

in the prenuptial agreement

1.3.5 Time to enter into prenuptial agreement

Prenuptial agreement must be established prior to marriage

1.3.6 Purpose of Prenuptial Agreement

One of the purposes for prenuptial agreements is to protect a spouse‟s separate property owned before marriage In other words, thanks to prenuptial agreement the spouse can remain separate property after marriage and it may prevent the creation of community property during the marriage

Besides, they may want to avoid potential arguments if they divorce, by providing in advance how their property will be divided, and whether or not either spouse will receive alimony A prenuptial agreement may allow a spouse to plan for controlling financial, bring up children and other problem.66

1.4 Prenuptial agreement in Vietnam legal system

1.4.1 Prenuptial agreement in France’s colony period

In 1858, France invaded Viet Nam, Under the „dividing to rule‟ policy (chính sách chia để trị) of the French, Vietnam was divided into three regions with different administrative institutions and different legal systems: The South (Cochin-china) and three biggest cities (Hà Nội, Hải Phòng, and Đà Nẵng) were considered French territories; Central Vietnam was a French protectorate and the North (the Tonkin) was

a semi-protectorate/semi-colonial region67; Therefore, family and marriage law had

66 “Purposes For Prenuptial Agreements”, the law office of Jeffrey lalloway, orange-county.com/purposes-for-prenuptial-agreements.html (last visited June 10, 2013)

http://www.divorce-lawyer-67 Textbook “History of State and Law” (Giáo trình Lịch sử nhà nước và pháp luật), Ho chi minh city

University of law, Hong Duc, Vietnam Law Society, (2013)

characteristics of Europeanize style of France and remained habit and custom of Viet

After then, three civil codes relate to family and marriage are established in three regions There was the Abbreviated Civil Code 1883 (Bộ Dân luật Giản yếu -

1883, was promulgated March 26, 1884 in Cochinchina and three big cities (Ha Noi, Hai Phong, Da Nang); the Civil Code Implements in the Vietnamese Courts in the North 1931 (Bộ Dân luật thi hành tại các Tòa án Bắc kỳ - hereinafter the North Civil Code 1931); the Central Vietnam Civil Code (Hoàng Việt Trung kỳ Hộ luật 1936) was ratified in 1936.69

In Southern Viet Nam, during the marriage, all property belonged to Husbands: Wives did not have separate property The husbands owned all assets, even comprise

of the wife„s assets before marriage, both movable properties and real estate Meanwhile, In Central Viet Nam and Northern Viet Nam, spouse could enter into a

author will present about North Civil Code and Central Viet Nam Civil Code below:

North Civil Code 1931

According to Article 104 of North Civil Code 1931: “about problem of

properties, the Law just intervenes to spouse relationship if they have not agreed about prenuptial agreement, provided that it is not against with habit and custom and does not conflict to the rights of the husband who owns the family” Article 105 of

North Civil Code 1931: “Prenuptial agreement must be in writing in the presence of

68

Phan Dang Thanh – Truong Thi Hoa, “Vietnam marriage and family regimes both past and present” (các chế

độ hôn nhân và gia đình Việt Nam xưa và nay), Ho Chi Minh city Tong Hop publisher, (2012) Pp.69-71

69 Textbook “History of State and Law” (Giáo trình Lịch sử nhà nước và pháp luật), Ho chi minh city

University of law, Hong Duc, Vietnam Law Society, (2013)

70 Phan Dang Thanh – Truong Thi Hoa, “Vietnam marriage and family regimes both past and present” (các chế

độ hôn nhân và gia đình Việt Nam xưa và nay), Ho Chi Minh city Tong Hop publisher, (2012), pp 45

“No-te” 71

, or Commune chief certified it, Prenuptial agreement must be made prior to marriage There is not changes prenuptial agreement after marriage Prenuptial agreement must be signed by both parties who have legal capacity Assets after marriage must be noted on certificate of marriage, this will have effect to third party Whoever wants to make an extract certificate of marriage about those notes, the officer of civil status will distribute it” and article 106 of North Civil Code 1931: “If spouses do not have a prenuptial agreement, the spouse’s property will be community property, in other words, spouse’s income is unified.”72

According to article 104 and article 106 of North Civil Code 1931, it is considered to conclude that North Civil Code 1931 provides both legal property institution and

property institution of agreement in marriage According to 104: “Prenuptial

agreement is not against with habit and custom”, it is a proper provision but provide

“does not conflict to the rights of the husband who owns the family” is not proper

because prenuptial agreement must be an equal agreement between two parties

The parties of prenuptial agreement: “Prenuptial agreement must be signed by both

parties who have legal capacity”, “legal capacity” to contract means the legal

competence of a person to enter into a valid contract Usually the capacity to contract refers to the capacity to enter into a legal agreement and the competence to perform some act.73

Formalities of Prenuptial Agreement must be in writing and be notarized by “no-te”

or Commune chief: “Prenuptial agreement must be in writing in the presence of

“No-te” , or Commune chief certified it…” (Article 105) About contents of prenuptial

agreement, it does not have direct provisions in North Civil Code 1931 However, we

can find that property is a main problem which prenuptial agreement contains: “about

problem of properties, the Law just intervenes to spouse relationship if they have not agreed about prenuptial agreement… (Article 104); Assets after marriage must be noted on certificate of marriage…(Article 105); If spouses do not have a prenuptial agreement, the spouse’s property will be community property…(Article 106);”

Time to establish prenuptial prenuptial agreement: “Prenuptial agreement must be

made prior to marriage” (Article 105) Amendment and abolishment of prenuptial

agreement: “There is not changes prenuptial agreement after marriage” (Article

105) It means that spouse does not have right to change prenuptial agreement after marriage

Central Vietnam Civil Code 1936

According to Article 102 of Central civil code: “if spouse do not have prenuptial

agreement, the law will intervene to property problem; prenuptial agreement does not have contrary with habit and custom and does not conflict to the rights of the husband who owns the family”

According to some available documents, provisions about prenuptial agreement in the

However, these documents about Central Vietnam Civil Code 1936 are not full and detailed The author has tried to research and looks for articles in Central Vietnam Civil Code 1936, but the author just find article 102 of Central Vietnam Civil Code

1936, therefore, It is very difficult to make comparisons between Central Vietnam Civil Code 1936 and North Civil Code 1931 However, considering the article 102 in Central Vietnam Civil Code 1936, it is almost identical to the provision about prenuptial agreement in North Civil Code 1931 Central Vietnam Civil Code 1936 and North Civil Code 1931 provide both legal property institution and property

institution of agreement in marriage: “if spouse do not have prenuptial agreement, the

74 Law expert Ngo Van Thau, “Law on marriage and family before and after August Revolution” (Pháp luật về hôn nhân và gia đình trước và sau cách mạng tháng 8), Ha Noi Justice publisher, (2005)

law will intervene to property problem;(Article 102 of Central Vietnam Civil Code

1936); “about problem of properties, the Law just intervenes to spouse relationship if

they have not agreed about prenuptial agreement” (Article 104 of North Civil Code

1931) Besides, a common principle between Central Vietnam Civil Code 1936 and

North Civil Code 1931 about prenuptial agreement: “prenuptial agreement does not

have contrary with habit and custom and does not conflict to the rights of the husband who owns the family”

1.4.2 Prenuptial agreement in South Viet Nam before April 30, 1975

provided in Acts below: Law of Family (No.1/59) January 2, 1959 (Ngo Dinh Diem period); Decree No.15/64, July 23 1964, provide about marriage, death and community property (Nguyen Khanh period); Civil code is promulgated by decree No.028/TT/SLU December 20, 1972 (Nguyen Van Thieu period) provide about family and marriage and other civil institution

Law of Family (No.1/59) January 2, 1959 (Ngo Dinh Diem period)

About property issue, Spouse could form a prenuptial agreement before registering marriage in order to stipulate spouse‟s rights and obligations, as well as assets issues The prenuptial agreement pointed out that the spouse applied separate property or community property institution, how to use assets, contribution for family expenditure, brought up children and supported their parents…if spouse did not have

Decree No.15/64, July 23 1964, provide about marriage, death and community property (Nguyen Khanh period)

75 Phan Dang Thanh – Truong Thi Hoa, “Vietnam marriage and family regimes both past and present” (các chế

độ hôn nhân và gia đình Việt Nam xưa và nay), Ho Chi Minh city Tong Hop publisher, (2012) Article 45, 46,

47, 49, 54 of Law of Family (No.1/59) January 2, 1959

Decree No.15/64 inherited many contents of Law of Family (No.1/59) and abolished some of articles which was unreasonable and contrary to tradition For example, Law

of Family (No.1/59) provided marriage conditions and procedure identical to Decree No.15/64; Nevertheless, Decree No.15/64 abolished all provisions of Law of Family (No.1/59) about spouse lived together which they did not register marriage Decree No.15/64 stil maintained prenuptial agreement and community property institution without prenuptial agreement; however, about property relationship, Law of Family (No.1/59) provided all spouse‟s real estate which was inherited or given in during marriage or spouse had before marriage were community property On the contrary,

Decree No.15/64 provided “those real estate were separate property” (Article 48 of

Civil code is promulgated by decree No.028/TT/SLU December 20, 1972

Spouses could establish prenuptial agreement provided that it was not against public order and fine traditions and customs Prenuptial agreement could be amended after forming certificate of marriage If spouses did not agree prenuptial agreement, all properties were community property Civil code 1972 showed through some of articles:

Article 12377; article 14478; article 14579 ; article 14680; article 14781; article 14882; and article 14983 Basing on these Articles, we could conclude that Civil code 1972

76 Phan Dang Thanh – Truong Thi Hoa, “Vietnam marriage and family regimes both past and present” (các chế

độ hôn nhân và gia đình Việt Nam xưa và nay), Ho Chi Minh city Tong Hop publisher, (2012), pp 59

77

“in the presence of two adult witnesses regardless of relatives or not, the officer of civil status would ask both parties whether they want to form prenuptial agreement or not and whether they accept to marry or not; then, if both parties accept, on behalf of the law, the officer of civil status declared both parties were legal spouses and formed certificate of marriage.”

78

“The law just provide property issues if the spouses do not form prenuptial agreement”

79 “the spouse can form prenuptial agreement freely, provided that it is not against to public order and fine traditions and customs”

80 “Prenuptial agreement must be established before marriage and be witnessed by notary if spouses who are minor want to agree prenuptial agreement, they must have support of whoever has legal capacity allow them marry”

81 “prenuptial agreement can not change after marriage”

82 “the changes of prenuptial agreement before marriage must be made in certificate same with modality of prenuptial agreement The changes in prenuptial agreement by the certificate is only valid if it is set up in the presence of those people participate in prenuptial agreement”

provided both legal property institution and property institution of agreement in

marriage: “The law just provide property issues if the spouses do not form prenuptial

agreement” (Article 144) and a common principle was “it is not against to public order and fine traditions and customs” Civil code 1972 did not mention to formalities

of prenuptial agreement, it just provided that “Prenuptial agreement must be

established before marriage and be witnessed by notary”(Article 146), “the changes

of prenuptial agreement before marriage must be made in certificate same with modality of prenuptial agreement” (Article 148) Time to establish prenuptial

prenuptial agreement: “Prenuptial agreement must be established before marriage” (Article 146) Amendment and abolishment of prenuptial agreement: “prenuptial

agreement can not change after marriage” (Article 105), It means that spouse did not

have right to change prenuptial agreement after marriage These provisions were similar in content with provisions of North Civil Code 1931 and Central Viet Nam Civil Code 1936 of France‟s colony period

1.4.3 Prenuptial agreement in the law of family and marriage from 1945 until nowadays

After the 1945 August Revolution, The State promulgated two Decree in order to regulate some family and marriage relationships: Decree 159/SL November 17, 1950 provide about divorce; Decree 97/SL May 22, 1950 amend some provisions and institutions Decree 97/SL May 22, 1950 is unique legal document regulate spouse‟s property during marriage period before promulgating Law of family and marriage

1959 Towards husband and wife relationship, it is only stipulated at Article 5

“Husband and wife have equal rights in family”and Article 6 “the wife has entire capacity to family” This Decree does not mention whether prenuptial agreement is

acknowledged or not Nevertheless, Article 1 of Decree 97/SL May 22, 1950 provide:

“civil rights always are protected by the laws when people implement it correspond to

83 “Prenuptial agreement is only valid to third party if it is recorded in certificate of marriage The changes in prenuptial agreement is also only valid to third party if it is recorded in certificate of marriage The Notary must even exemplify the changes when distribute prenuptial agreement copy”

benefit of citizen.” Article 14: “Any clauses are stipulated, in simple and essential civil code of French President 10 th of March 1883, North Civil Code was enacted March 30, 1931 in Tonkin, Central civil code was ratified in 1936 and the rules afterwards, which is contrary to above clauses, will be abolished” From above

provisions, we can determine that if prenuptial agreement is established non-conflict with benefits of husband and wife, prenuptial agreement is considered as valid Therefore, Prenuptial agreement still exists in legal system from 1945 to 1959.84 From above analyzing, we can conclude that prenuptial agreement existed in history

of Viet Nam legal system for many years ago At that time, the State applied provisions of prenuptial agreement in practice

Law of family and marriage 1959, 1986 and 2000

Law of family and marriage 1959, 1986 and 2000 does not admit the exist of prenuptial agreement, Viet Nam Legal system only admits legal property institution This shows through some provisions: Article 15 of Law of family and marriage 1959:

“the husband and wife have ownership rights, enjoy and use rights equallity with

assets before and after marriage” Provisions at Article 30, 35, 40, 63 and 64 in

constitution 1992 are legal basis of Viet Nam family and marriage regime The State amended, supplemented law of family and marriage 1986 and formed law of family and marriage 1986 Law of family and marriage 2000, as well as other legal documents, does not provide to allow a man and a woman establish prenuptial agreement in the dispute situation, those contracts are not acknowledged by the law and also are regulated by Law of family and marriage 2000 According to Article 32

it states that, law of family and marriage 2000 does not provide about the spouse‟s agreement, as well as prenuptial agreement, it only provides spouse‟s property instiution accordance with the provisions of law

1.4.4 Reason for non-providing prenuptial agreement

The will of dominating class

the law of every country always reflects the will of domianting class, all regulations of the law have purpose to serve benefits of dominating class In the social has class, family and marriage relationships, as well as other relationships are under the control by the will of dominating class.86 Law of family and marriage 1959 is a legal instrument of the State in order to wipe out the remains family and marriage regime before Building new family and marriage regime socialist Law of family and marriage 1959 is promulgated aim to determine nature of socialist is legal instrument

to serve benefit of labor force The dominating class confirmed that provisions of law

of family and marriage of previous State are reactionary, against benefits of labor force, therefore, must be abolished,87 in which included prenuptial agreement institution

Points of view of marriage

In family and marriage law 2000 provide that: “Families constitute cells of the society, cradles where men are brought up, and an important environment for personality formation and education, contributing to the construction and defense of the Fatherland Good families make good society, good society makes better families” Strategy of building family in Viet Nam from 2005 to 2010, shows that: “