CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT
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, http://www.divorce-lawyer- orange-county.com/purposes-for-prenuptial-agreements.html (last visited June 10, 2013).
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 Nam.68
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 - hereinafter the South Civil Code 1883) in the South of French President 10th of March 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 pre-nuptial agreement in order to provide about property problem.70 Accordingly, The 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
71 North civil code 1931 used “no-te”, The "no-te" is borrowed from French “Notaire”, translate to english is
“Notary public”.
72 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), pp.76-78.
73 “Capacity to Contract Law & Legal Definition”, http://definitions.uslegal.com/c/capacity-to-contract/ (last visited June 30, 2013).
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 Central Vietnam Civil Code 1936 includes Article 102, 103, 104, 105, 106 and 107.74 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”.