CHAPTER 2: APPLICABLE OF PRENUPTAL AGREEMENT IN VIET NAM37 2.1. Practices in solving divorce disputes in Viet Nam
2.3. The necessary for provisions about prenuptial agreement in the Law on
2.3.1. The outstanding problems of property settlement in divorce
The outstanding problems of property settlement in divorce includes two ideas:
Divorce increasing and property settlement in divorce; the backlog of cases on divorce.
Divorce increasing and property settlement in divorce
According to statistics of People's Supreme Court, from 30th september 2000 to 30 september 2011, People's Court at all levels accepted 3.143.746 civil, commercial business, labour, administration, family and marriage cases, among them, family and marriage cases are 875.282 (30% of total accepted cases).112
Spouses often do not think of division of property when they are happy. However, when they want to divorce, one of the most important things is the division of property. There have been hard and serious divorce cases, everyone finds that it also means the end of love. They do not need each other and even they fight for each penny. The reason for all plights is as to prove personal property and community property.
The backlog of cases on divorce:
Many divorce cases have prolonged for many years, typically, the divorce case between Mr.Tran Van Muoi-chairman of the board of directors, General Manager of Nam sao international group and Mrs.Pham Thi Huong Giang - Deputy director of Atlantic Ocean superintendence and inspection joint-stock company is a record
112 Summary report of implementation of the Marriage and Family Law 2000 and report of target, viewpoint and orientation in amendment, supplement of Law on marriage and family 2000, Ministry of Justice, (2013).
divorce case because their properties are worth thousands of billion VND, last for four years to solve. The divorce case of Deputy Chairman of FPT group is an expensive and lasting divorce case. The divorce case between Mr.Bui Duc Minh and Mrs.Nguyen Thanh Thuy-Deputy chairman of Bao Son group lasted for many years with dispute property to 10.000 billion VND.113
The court is difficult to determine whether it is personal property or community property114. Consequently, sometimes they determine unreasonably and unequally. An example for determining property of Court: “dispute property was the land which had areas 360 m2 (square meters). In 1998, Mrs. T‟s parents established a will to give her this piece of land and her spouse built two houses on that piece of land. Mrs. T‟s Parents replaced the will by a contract which showed that they tranferred use right of land for her. One year later, People‟s Committee issued certificate of land use right which is in their spouse‟s name. When they divorced and divided property in divorce, both first instance Court and appellate Court determined that this land was Mrs. T‟s personal property. However, According to supreme court‟s viewpoint, both Court determined unreasonably because Mrs T allowed her husband to undersign on the certificate of land use right. Therefore, the land was community property and the Court could consider to divide the land for Mrs.T much more part than her husband”.115
Dividing spouse‟s property in divorce is usually complicated issues which court must encounter. In some cases, the Court‟s judges have determined spouse‟s community property exactly, however there are many errors when they divide those properties. In
113 Nhi Anh, Tien Phong Online, “Divorce cases of thousands of billion VND”, http://www.tienphong.vn/Kinh- Te/610172/Nhung-vu-ly-hon-ngan-ty-cua-dai-gia-Viet-tpol.html. (last visted July 03, 2013)
114 Nguyen Thanh Mai, “Theoretical basis and practices in governing spouse‟s property relationship in accordance with marriage and family law 2000”, master's thesis, Ha Noi University of law.
115 Hoang Yen, FDVN law company, “when division spouse‟s community property, Courts need to base on contribution of each party”, http://www.fdvn.vn/index.php?option=com_content&view=article&id=369:ly-hon- toa-kho-xac-nh-tai-sn-chung-rieng&catid=2:x-phuc-thm-v-tan-hoang-phat-khong-hy-an-la-
sai&Itemid=18&lang=vi (last visted 10/6/2013).
some circumstance is error in dividing properties in kind, there are some mistake cases in evaluating spouse‟s contribution.116
The backlog of cases about divorce affects to benefits of the parties. Prenuptial agreement is necessary for providing in family and marriage law. From benefits of prenuptial agreement and limits of solving divorce cases, the author considers that prenuptial agreement should be provided. It help save time and money for the parties in divorce cases and make decrease the backlog of cases about divorce.
2.3.2. The popularity of Marriage with foreigners
Nowadays, in the trend of international integration, A Vietnamese married to a foreigner is a popular phenomenon. According to statistics: nearly 300 thousand, mainly Vietnamese women who married to foreigners117. This number is given at
“Conference on International Migration and Data Management for Policy Development” which is organized in Hanoi city.
Prenuptial agreement is popular in foreign countries, so Vietnameses married foreigners, possibilities of establishing prenuptial agreements is quite high. According to provisons in private international law: firstly, in many Judicial Cooperation Treaties between Viet Nam and other countries such as Laos, Hungary, Ukraina Russia, China, France…118 allow to apply law principles to govern marriage to solve conflict of law about marriage procedures.
Secondly, according to Article 101 of family and marriage law 2000, where this Law and other legal documents of Viet Nam prescribe or the international agreements which the Socialist Republic of Viet Nam has signed or acceded to invoke (viện dẫn), the invoked foreign law shall apply, if such application does not contravene the
116 Nguyen Thi Hanh, “Division of spouse‟s community property in accordance with Vietnam Law- application practice and improvement orientation”, master's thesis, (2012).
117 “General report on the migration of Vietnamese citizens overseas” at the “Conference on International Migration and Data Management for Policy Development”, Ha Noi, June 1-2, 2011.
118 Judicial Cooperative Treaties between Vietnam and France/China/Russia…
principles laid down in this Law. Where a foreign law refers back to the Vietnamese law, Viet Nam‟s marriage and family legislation shall apply.
The problem the author wants to say that there will be some of circumstances applying law of foreign country. Therefore, prenuptial agreement can still be applied to Vietnames when they married foreigners. In general, although the law does not provide prenuptial agreement in national legal system, it still accepts prenuptial agreement in private international law.
Besides, For several years, foreign divorce cases are quite a lot. These foreign divorce cases will often be more prolonged and hard than normal divorce cases, there are three common reasons: Firstly, notarization and endorsement of documents and evidences take a lot of time to carry out. Secondly, requirements of foreign divorce cases are very various, involving determining overseas property, bringing up their children, dividing community property, etc. Finally, Many judges say that they have many difficulties in addressing divorce disputes which have overseas real estate.
According to clause 3, Article 104 of Marriage and Family Law 2000 provides that:
“The settlement of a divorced couple‟s property being an immovable in a foreign country shall comply with the legislation of the country where such immovable is located”. Therefore, making a decision in these cases is complicated because the judges must apply foreign law.119
According to Ho Chi Minh People‟s Court, settlement foreign divorce cases still has many problems. Gathering evidence, opinion of parties in divorce cases is so much trouble. dealing with foreign divorce cases of the foreign countries which do not have Judicial Assistant Treaty with our country is more hardship.
As show, the author thinks that in the trend of international intergation as nowadays, prenuptial agreement is necessary. Provisions of prenuptial agreement can be applied to solve foreign divorce cases efficiently.
119 Thanh Tung, “marriage case: many difficulties are waiting regulation from law”, Law Journal, dated May 27, 2013.
2.3.3. Current situation of making “prenuptial agreement” in Viet Nam Family and marriage law 2000, as well as other legal documents does not stipulate prenuptial agreements. If there are disputes, these agreement between parties about “prenuptial agreement” will not be governed by family and marriage law.
However, this does not affect to rights and benefits of spouses about personal property, because of according to Article 32 of family and marriage law 2000:
“Husband and wife have the right to own personal property. Personal property of husband and wife includes property owned by each person before their marriage;
property inherited and/or given separately during the marriage period…Husband and wife may consolidate or not consolidate their personal property into the common property.”120 In addition, According to Article 33 of family and marriage law 2000:
“Husband and wife have the right to possess, use and dispose their personal property.
Husband and wife manage by themselves their personal property; where either spouse is not able to manage by himself or herself…”.
In fact, although provisions of the law does not mention prenuptial agreements, there are many spouses have agreements about property issues during the marriage or the end of the marriage in death or divorce, this agreement is established before marriage.
It is exactly is prenuptial agreement, but Viet Nam legal system does not acknowledge and protect these agreements. For example, Mrs. Phạm Thị Van (Ha Noi), she is an owner of a big hotel and a chain of cosmetic stores. She marries a man who was her partner in working. They have established “prenuptial agreement”. according to this
“prenuptial agreement”, both parties have provided to determine separate property and community property and other issues in during the marriage and the end of marriage by death or divorce, this agreement is established before marriage, but this agreement have just solved to feel safe psychologically, when Mrs Van has come to lawyer‟s office to consult, lawyer said that prenuptial agreement is not be governed by
120 Law column, vnexpress Journal, “there is not provision about prenuptial agreement in Vietnam”,
http://vnexpress.net/gl/phap-luat/tu-van/2011/12/khong-co-quy-dinh-lap-hop-dong-hon-nhan-o-viet-nam/ (last visited July 05, 2013).
the law. In practice, people want to make prenuptial agreement like Mrs Vân are not rare in Viet Nam.121
The author thinks that, family and marriage law of Viet Nam should provide about prenuptial agreement because it is necessary for economic and social situation in Viet Nam. Even there are people make prenuptial agreement because they wish to be protected about financial issues regardless of provisons of the law, the law should create legal lobby for citizen‟s agreements, it ensures citizen‟s rights about feedom of agreement.
2.3.4. Establishment of gender equality regime in family and marriage During the last 20 years, Viet Nam is considered as one of the countries of Association of Southeast Asian Nations (ASEAN) which have overcome inequality of women with men rapidly. However, Viet Nam was influenced by old-fashioned ideas and backward customs from feudalism period. Until Now, Blatant sexism still is a urgent matters in society. Especially, it exists in a large proportion of Vietnamese‟s family.122 In the countryside, there were many opinions that: “Men must stay at upstairs, women must stay at downstairs”. So, with these out of update opinions, all things related to family property such as charging for items such as mechanized plows, buffalo, plant seeds,…these things were made a decision by man. Women seldom joined in the process of making a decision in their family and in society as men did. Woman‟s opinions were without worth, they do not have voice in the family.
Many women in rural who terminate marriage in divorce or become a widow, they have not received any property, even moneyless. In fact, women‟s ability about possession, control and disposition of property were different from men‟s ablity. The differences in approaching to property (especially land) was very large. Heads of the
121 Dao Giang-Tieu Long, “fearing “bitter fruit”, many people establish prenuptial agreement”, life and law Journal, dated October 10, 2012, http://ww2.doisongphapluat.com.vn/so-an-qua-dang-nhieu-nguoi-muon-ky- hop-dong-tien-hon-nhan-a57911.html (last visited July 05, 2013)
122Hong Trang, “Prevent and eliminate inequality between women and men in family”, Nhan Dan Newspaper, dated April 01, 2013.
households were women who are less likely to own and cultivate land. In general, if there was evidence of all farmers, women rarely owned the land which they cultivated.The reasons for sexual inequality phenomenon result from approaching to property, credit between women and men, time to use and political institutions. These elements have limited opportunities of women and have prevented from approaching sexual equality.123
Nowadays, Viet Nam is step-by-step eliminating sexual inequality phenomenon. In legal provisions: according to article 52 of 1992 constitution of the socialist republic of Viet Nam (As Amended 25 December 2001): “All citizens are equal before the law”. This determines that women have equal rights as men. In addition, according to Article 18 of the law on gender equality 2006: “Wife and husband are equal in the civil relationship and other relationships related to marriage and family. Wife and husband have equal rights and duties in possessing common assets and are equal in using their common income and in deciding their family resources. Wife and husband are equal in discussing, deciding the choice and use the appropriate family planning measure and use the leave to take care of their children as provided by the law. Boys and girls are given equal care, education and provided with equal opportunities to study, work, enjoy, entertain and develop by the family. Female and male members in the family have the responsibility to share housework”.
In the society: the men, as well as the father in family do not hold exclusive economy, the women begin to integrate in the society in order to affirm their position in contribution income of family. youth generation has many chances and conditions to make contact with advances of the age; science, technology and industry; they can receive new culture trend of the world…therefore, they begin to open to new ideas, establish modern, democracy and freedom thoughts. Nevertheless, in market economy, both women and men have to work and join social activities, but it still exists popular situations which all works include housework, looking after children
123 Promotion of International Trade - Ministry of Agriculture and Rural Development.
http://xttm.agroviet.gov.vn/XTTMSites/viVN/76/tapchi/69/107/3668/Default.aspx (last visited July 07, 2013)
and support for parents belong to wife‟s responsibilities and managing property depends on husbands. Clearly, the law on gender equality has implemented for a long time, but many women are not aware of their rights. Gender equality is the one of important criteria to evaluate development of every society and country. Gender equality is both a goal and element to contribute in developing economy and society.
Gender equality has special position in building a development and sustainable society, it states freedom and democracy.124
Contract is an agreement base on voluntary, equality between the parties who enter into the agreement.125 So, prenuptial agreement is itself an equality agreement between the spouse. This provision will create legal lobby in building gender equality in Viet Nam. Therefore, it is considered that we should provide prenuptial agreement in Viet Nam legal system in order to ensure real gender equality, this provision is a turning-point to affirm equality and democracy of spouse‟s relationship in family.
2.3.5. Points of view of law researchers and the issue of drafting about law on family and marriage
The ownership of the spouse‟s property is a concept which belongs to citizen ownership rights is recorded in 1992 constitution of the socialist republic of VietNam (As Amended 25 December 2001), according to Article 58 of Constitution:“Citizens have the right to ownership of lawful income, savings, housing, personal possessions, means of production, capital and other assets in enterprises or in other economic organisations; the right to use the land allocated by the State is provided for in Article 17 and 18. The State protects the citizen's right to bequeath and to inherit.”
According to law reseachers: family and marriage law 2000 just provides legal property institution in marriage. The law has common provisions for all spouses about basis to determine community property, separate property and rights and obligations of spouses in respect with dividing property after divorce. From legal aspect, legal
124 The National Assembly of the socialist republic of VietNam,“ Orientation of State administration about sex equality in Vietnam”, http://www.na.gov.vn/nnsvn/print.asp?id=227&catid=218
125 Ph.D. Hoang The Lien, “Scientific comments about Civil Code 2005 (book II)”, National Politics publisher, Ha Noi (2009), Ministry of Justice, legal scientific Institute.
property institution in marriage is community property institution. Accordingly, properties which spouses have in during marriage period are community property of spouses (except properties which each party is given, inherited for their own will be separate property). Wife and husband have equal rights and obligations in respect with managing, disposing of community property; For some transactions relate to community property, any party who wants to carried out this transaction must have agreement from the other party.126
Head of Department of civil-economic law, Ministry of Justice Duong Dang Hue makes comment that in principle, legal property institution in marriage conformity with viewpoints and economic situation in VietNam family. However, imposing only one property institution in marriage for all the spouses is rigid.127 Approval with Mr.
Hue‟s comments, Representative of Trial science Institutes, People‟s Supreme Court considers that property right is basis right which is provided in 1992 constitution and Civil Code 2005. Each individual has right to control and dispose of their property which are not prohibited by the law. Therefore, spouses can agree about community and separate property before marriage, this is not against the law. From implementation practices of family and marriage law 2000 have shown that legal property institution does not make sure disposition rights of property which are stipulated in Constitution 1992 and Civil Code 2005. In addition, applying only one legal property institution in marriage for all circumstances does not meet demand of some spouses. From above analysis, a reasonable solution which the law should allow agreement-based property institution, on the other hand, establishes provisions to ensure necessary conditions for family life, especially looking after, bring up and educate children.128
126 Agreement-based property institution- legal basis to protect private property”, Electronic newspaper of representatives of the people, http://daibieunhandan.vn/default.aspx?tabid=81&NewsId=279904 (last visited July 04, 2013)
127 Information from Ministry of Justice
128 “Agreement-based property institution- legal basis to protect private property”, Electronic newspaper of representatives of the people, http://daibieunhandan.vn/default.aspx?tabid=81&NewsId=279904 (last visited July 04, 2013).
This mean that according to law reaseachers, the law should provide agreement-based property institution. If the law provides agreement-based property institution , it will allow prenuptial agreement. Obviously, law reseachers‟ viewpoint is more open- minded about prenuptial agreement.
Lawmakers‟s viewpoint, as well as law reaseachers also change, Lawmakers proposed provisons about agreement-based property institution in marriage, they drafted amendments in law on family and marriage 2000 with purpose to establish legal basis for protecting separate property of spouses. It can be understood that spouses can agree about property problem before marriage. In case of spouses do not have agreement, they can apply legal property institution in marriage. drafting laws body considers that they still have some concerns about this problem but they believe that prenuptial agreement is a way to carry out equality and progress. It is an important instrument to protect separate property of spouses.129 From practice and theoretical basis combine with experiences from foreign law were shown, the author shall give scientific proposals.