CHAPTER 2: APPLICABLE OF PRENUPTAL AGREEMENT IN VIET NAM37 2.1. Practices in solving divorce disputes in Viet Nam
2.2. Ability to apply prenuptial agreement in Viet Nam
2.2.2. Traditional culture and Public opinion
The basis of forming western culture arises from cold and dry climate, main terrain is prairie with a region of flat, gently sloping, or hilly land covered chiefly by tall grasses, this terrain is suitable for nomadic animal husbandry (chăn nuôi du mục), forming culture of nomadic animal husbandry. Nomad life creates habit of moving around, ambition to conquer nature. Personal ego is respected. Nomadic animal husbandry is a cause to form analytical and critical thinking in each element. This thinking establishes life style of reason and behaves on principle. Therefore, Western people have habit of respecting the law early.103 Habit of respecting the law and
99 Le Dang Doanh, “Bubbles, Booms & Busts: How to promote a Balanced Growth Model to curb economic instability”, 4th Economy of Tomorrow (EoT) Regional Forum, Novotel Ploenchit, Bangkok 25-26 February 2013.
100SINA English, “ADB forecasts Vietnam's GDP in 2012 to slow to 5.7 pct”, http://english.sina.com/business/2012/0410/456957.html (last visited June 15, 2013)
101 SINA English, “ADB forecasts Vietnam's GDP in 2012 to slow to 5.7 pct”, http://english.sina.com/business/2012/0410/456957.html (last visited June 15, 2013)
102 Professors House, “prenuptial agreement”,
http://www.professorshouse.com/Relationships/Weddings/Articles/Pre-nuptial-Agreements/ (last visited June 28, 2013)
103 Tran Ngoc Them, “Cultural basis in Vietnam” (Cơ sở văn hóa việt nam), Education publisher, (2000).
personal ego establish “rational culture” (văn hóa trọng lý) of western people.
Prenuptial agreement can apply in this culture and we can find that prenuptial agreement exists primarily in western countries such as United State, France, England, Germany…
Meanwhile, The basis of forming eastern culture arises from hot and humid climate and there are lots of rain, network of rivers and streams is tangled, fertile plains. This leads to farming agriculture have been developing. Agriculture culture make eastern people worship and wish to peace with nature. Eastern people have settlement life, they do not like moving around. Settlement life creates a sense of community, this results in life style of emotion. Mode of production (phương thức sản xuất) depends on much nature elements, so it establishes synthesis thinking. Synthesis thinking is cause to form flexible attitude and behaviour, have inclining to experience and subjective, perception through feeling rather than reason.104 Eastern people‟s culture in a general sence, as well as Vietnamese‟s culture is “sentiment culture” (văn hóa trọng tình).
Prenuptial agreement provide primarily about property issue during marriage period and after divorce, it emphasizes material value rather than spiritual value. It is impossible to spouses establish prenuptial agreement before marriage in Viet Nam because prenuptial agreement is an influence to sentiment between couples, so prenuptial agreement is not suitable for Vietnamese‟s psychology.
As presented, Prenuptial agreement is not suitable with “sentiment culture” as Viet Nam. Moreover, purpose of marriage relationship is “upholds faithfulness, brings up children, builds happy and durable family” but prenuptial agreement has provisons about dividing property after divorce, it is not suitable for purpose “build happy and durable family”.
104 Tran Ngoc Them, “Cultural basis in Vietnam” (Cơ sở văn hóa việt nam), Education publisher, (2000).
Nevertheless, Society is changing more rapidly, constantly, and intensively than it was in the past. It's a democratic society with the progress of women's rights, the sexual politics between men and women have changed. “Sentiment culture” does not exist absolutely. Marriage relationship has increasingly developed and become more modern. People aware of personal ego and they wish to be protected private rights such as freedom right of agreement, ownership right of private property, equality right of women…etc.
In Modern society, many spouses have open-minded idea about marriage. They consider that prenuptial agreement does not affect to their sentiment. They trust each other but there is nothing absolutely in life and prenuptial agreement is a safe method to protect their property.105 Nowadays, rich people are not rare in Viet Nam106, marriage purpose for money (Marry money) is concerned so some spouses established prenuptial agreement without acknowledgment of law.107
Besides, the pratice shows that some women is moneyless after divorce, such as Mrs.Hoang Thu Nga, Giang Vo ward, Ba Dinh District, Ha Noi. Women in plight of the homeless after divorce like Mrs. Nga are relatively common.108
Mr.Tuong Duy Luong, Deputy chief judge (phó chánh án) of People‟s Supreme Court stated that women often suffer loss in dividing property after divorce. Many spouses bring private property into community property but there is not agreement in writing, so it is difficult to determine separate property or community property. Many wives do housework, take care of children and they put all their private property in family,
105 Ngoc Bao-Hue Linh, “marriage and protect spouse‟s property”, Capital Security Journal (Báo an ninh thủ đô), dated 12 September, 2012.
106 “Vietnam‟s richest earns $29 million in two days”. News.com.vn.
http://news.com.vn/economy/company-and-names/17005-vietnams-richest-earns-29-million-in-two-days.html (last visited July 02, 2013)
107 Law drafting online, where voters and members of the National Assembly build Law,
http://duthaoonline.quochoi.vn/DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?ItemID=717 (last visited July 03, 2013)
108 Ngoc Bao-Hue Linh, “marriage and protect spouse‟s property”, Capital Security Journal (Báo an ninh thủ đô), dated 12 September, 2012.
while husbands work outside. Until dividing property in divorce, husbands have income from their working, wives are moneyless.109
With “Modern marriage culture” as nowadays, when society is more and more pay attention to ensure family relationships democratic and effusive, rights and benefits of each person are more respected and protected by legal system. Vietnamese families are more and more receive and built new human values which present is sex equal right and right of children. Responsibility between husband and wife in building family life is shared and respected.110 Prenuptial agreement is useful to build family with a fixed plan for a long time. We need allow that divorce is a risk in marriage which nobody can foresee and prenuptial agreement is a method to avoid conflicts between spouses in divorce, avoid losing culture values which had been built in the past. Idea about inequality between women and men in feudalism time made women depend on their husband, they did not have personal property, if they had personal property, it would belong to their husband. The women did not have right to raise voice for their interests. Nowadays, these ideas are gradually improved but it still does not come to the end. We need a method to resolve it, i.e prenuptial agreement solution.
Prenuptial agreement provides not only about property issue but also other issues, such as taking care of their kids, supporting their parents and other finance issues.
Those issues would not against traditional culture of Vietnamese.
According to Max- Lenin philosophy‟s viewpoint: “Materials decide awareness” (vật chất quyết định ý thức). Prenuptial agreement is established with purpose to reach unite will, avoid conflicts in future, mutual benefit, it brings forever love and
109Ministry of justice, http://moj.gov.vn/mobile/Pages/nghien-cuu-trao-doi.aspx?ItemID=5921 (last visted July 03, 2013).
110 Committee of Vietnam's Fatherland Front Ho Chi Minh city, “Promote traditional value of Vietnamese family in current situation”
http://www.ubmttq.hochiminhcity.gov.vn/web/vivn/print.aspx?cat_id=625&news_id=7729 (last visited 6/6/2013).
happiness. Because the sentiment is just lasting and happiness when spouses‟
economy and finance is clear and transparent.
The “sentiment culture” of Vietnamese is a good tradition and should be maintained and protected, however, society is changing and marriage relationship is more modern, so the law need to meet the demand of society. People need to be protected private property, as well as highly appreciate freedom right of agreement. Moreover, prenuptial agreement is a voluntary agreement, it is not compulsory for all spouses and it just essential for spouses who wish to protect their property. For those people are afraid of losing sentiment, they do not need to establish prenuptial agreement. As shown, freedom right of agreement and private property would be protected if there was prenuptial agreement. Following, The author will present about public opinion in order to know society‟s feedback in respect with prenuptial agreement.
Public opinion
According to results of a survey is published in theme on “spouse‟s property in production and business activity”: there are 279 people in which 62% of people were asked to answer that we should provide couples before marriage can establish prenuptial agreement, with follows reasons: prenuptial agreement is necessary for trend to develop economy of country, being suitable for global assimilation, ensuring freedom right, democracy and equality between wife and husband, creating legal basis for judging of court… besides, many people still insisted that not to provide prenuptial agreement because it is against traditional culture of Vietnamese, this leads to complicated psychology, losing solidarity or result in attaching much important to material value above spiritual value, occupy 38%.111
This impliedly indicates that the law needs to stipulate on prenuptial agreements because this is a requirement and objective trend. Public opinion have trend to approve and allow existence of prenuptial agreement. In summary, in conditions of
111 Dr. Nguyen Phuong Lan, “spouse‟s property in production and business activity”, scientific research, Ha Noi University of law, (2008), pp.36-38.
economic, political system and traditional culture, Viet Nam totally can ablity to allow prenuptial agreement into legal system and apply it in practice.