10 POINTS TO CONSIDER REGARDING THE LAW ON MARRIAGE AND FAMILY

10 POINTS TO CONSIDER REGARDING THE LAW ON MARRIAGE AND FAMILY

From a legal perspective, marriage is a social relation regulated by the relevant laws. Partners in a marriage relation have to comply with the law or they will be handled depending on the nature and severity of their violations. Accordingly, the issues related to the ESTABLISHING, CHANGING OR TERMINATING of a marriage relation such as getting married, rights and obligations between husband and wife, divorce, etc., are the ones many people care about. Therefore, this article provides 10 legal points to note regarding the law on marriage and family as follows:

1. NOTEWORTHY CONDITIONS FOR GETTING MARRIED

A marriage is considered legal if all the conditions for marriage prescribed in Article 8 of the Law on Marriage and Family 2014 are met as. In particular, these conditions include:

- Regarding the Age: It is required that the man is full 20 years or older and the woman is full 18 years or older. If the date of birth and the month of birth cannot be determined, then Clause 1, Article 2 of Joint Circular No.01/2016/TTLT-TANDTC-VKSNDTC-BTP shall be applied.

- Regarding the will: The marriage is voluntarily decided by the man and woman. A marriage is like a civil transaction, it is required that the partners establish a marriage relation on a voluntary basis, without being affected by force or deception.

- The marriage does not fall into any of these cases prohibited by the law: Sham marriage; Underage marriage, forcing a person into marriage, deceiving a person into marriage, obstructing marriage; A married person getting married to or cohabitating as husband and wife with another person, or an unmarried person getting married to or cohabitating as husband and wife with a married person; Getting married or cohabitating as husband and wife between people of the same direct blood line; relatives within three generations; adoptive parent and adopted child; or former adoptive parent and adopted child, father-in-law and daughter-in-law, mother-in-law and son-in-law, or stepparent and stepchild;

2. ISSUES RELATED TO MARRIAGE REGISTRATION

- Regarding the competence to handle marriage registration procedures:

The male and female partners must be both present at the time of marriage registration. According to Clause 1, Article 17 of the Law on civil status 2014, the representative of the commune-level People's Committee will request the two parties to confirm that they agree to establish the marriage relation voluntarily. If one of the two parties has been married once, a Certificate of Divorce must be obtained from the Court, together with a Certificate of marital status from the locality. In case of marriage with an officer or a men being in active service in the armed forces, the certification of their marital status shall be made by the heads of their units.

- According to Article 30 of Decree No.123/2015 ND-CP on guidelines for law on civil status, a marriage registration dossier includes:

Documents to be submitted:

• Application for marriage registration in the form provided by law to the Registry of civil
• The original certificate of marital status (issued by the People's Committee of the commune, ward or town where the man and the woman reside).

Documents to be presented:

• passport, ID card, or another document containing photo and personal information that has been issued by a competent authority and remaining valid for the identity verification purpose.
• Original of family registry

Time limit for settlement

• Immediately after receiving complete documents, if seeing that the marriage conditions are fully met in accordance with the Law on Marriage and Family, the justice and civil status officer shall record the marriage in the civil status book and together with the male and female partners sign in the civil status book. The male and female partners shall both sign the marriage certificate; the justice and civil status officer shall report to the chairperson of the commune-level People's Committee to organize the handover of the marriage certificate to the couple.
• In case of necessity to verify the marriage conditions of the male and female partners, the time limit for settlement is 5 working days.

Other relevant points to note:

• The marital status certificate or the marriage registration declaration that states marital status in the marriage registration dossier of the male and female partners must be the originals. Do not use a marital status Certificate for marriage registration procedures if that Certificate is confirmed to be used for other purposes, and do not use a marital status Certificate for any other purposes if that Certificate is confirmed to be used for marriage registration.
• In case where a person was married but have divorced or his/her partner has died, if that person wishes to get married with another partner, he/she must present the original of effective court judgment, decision on the divorce law or a copy of the death certificate of the deceased wife (or husband) when a certificate of marital status is requested.

- When getting married with people who registered the place of permanent residence on the family registration in a province or city but wish to register their marriage in another province or city, the partners only need to pay attention to the authority granting marriage status certificate according to each place of permanent residence of each person. After preparing the marriage registration dossier, the two partners shall go to the competent authority to register the marriage, the partners proceed to submit the dossier to the commune-level People's Committee of the place of residence (permanent residence or temporary residence) of the male or female partner depending on their option.

3. REGISTERING MARRIAGE INVOLVING FOREIGN ELEMENTS

- Regarding the subjects:

+ A Vietnamese citizen marries a foreigner.

+ Two Vietnamese citizens getting married but both are settling and residing abroad.

+ A Vietnamese citizen residing in Vietnam marries a Vietnamese citizen residing abroad.

+ A Vietnamese citizen who has two or more nationalities marries a Vietnamese citizen or a foreigner.

Thus, in the cases where there are foreign elements mentioned above, the marriage procedure must be carried out according to the registration procedure for marriage with a foreigner.

- Competence to register marriage:

• Pursuant to Article 37 of Law on Civil Status 2014 stipulating the Competence to register marriage.

• Decree No.123/2015/ND-CP guiding the implementation of the Law on civil status 2014

• Clause 1, Article 469 of the Civil Procedure Code 2015 provides for the common jurisdiction of Vietnamese courts to settle civil cases involving foreign elements.

Procedures for marriage involving foreign elements in Vietnam shall be carried out at the People's Committee of the district where the Vietnamese citizen resides. In case both the Vietnamese citizen and the foreigner reside in Vietnam, they can request marriage registration at the district-level People's Committee where either party resides. In addition, in case a citizen marries a foreigner but is in the border area, if the Vietnamese citizen permanently residing in the border commune area marries a citizen of a neighboring country permanently residing in the administrative unit equivalent to the commune level of Vietnam, adjacent to the border commune of Vietnam where the Vietnamese citizen permanently resides, the marriage registration shall be carried out by the commune-level People's Committee in that border area.

- Registration dossiers:

+ A declaration of marriage registration with the foreigner, a certificate of the marriage status of the foreigner issued by a foreign competent authority, a certificate of health status to confirm that the marriage registrant does not have mental illness or other illness that affects the ability to perceive and control behavior issued by a medical authority.

+ Papers proving their identity.

+ A written certification from the management agency or unit that the marriage to a foreigner is not contrary to the regulations on the working place for Vietnamese citizens who are civil servants, public employees, or currently serving in the armed force.

(The above documents must be consular legalized and translated into Vietnamese with notarized translation or certified translator's signature as prescribed by law; and must be valid).

- Handling of dossiers:

Submit directly at the Justice Department of the district-level People's Committee where they are residing and follow the instructions for supplement to the dossier (if needed). The Chairman of the district-level People's Committee signs the marriage certificate for the two partners and the Justice Department organizes the granting of the marriage certificate to the partners, 01 copy for each partner. Both partners must be present during the handing over of this paper. After completing the procedures such as consulting the two parties, if the parties voluntarily get married, record the marriage in the civil status book, and jointly sign the civil status book, then both men and women sign the certificate. After completing these procedures, if the partners agree to get married on a voluntary basis, the marriage shall be recorded in the civil status book and together with the male and female partners sign in the civil status book. The male and female partners shall both sign the marriage certificate

4. CASES OF ILLEGAL MARRIAGE AND MARRIAGE RELATIONS THAT ARE NOT RECOGNIZED

a) Illegal marriage        

- Illegal marriage is violation of the regulations on marriage conditions as mentioned in Section 1. Handling of illegal marriages shall be carried out by the Court in accordance with the provisions of the Law on Marriage 2014 and the law on Civil Procedure. At the time the Court settles the request for annulment of the illegal marriage, if both parties to the marriage have fully met the conditions for marriage as prescribed and both parties request recognition of the marriage relation, the Court shall recognize the marriage relation. In this case, the marriage relation is established from the time when the parties are eligible for marriage as prescribed. The court's decision on the annulment of illegal marriage or recognition of the marital relation must be sent to the agency that has performed the marriage registration for recording in the civil status book; the partners of that illegal marriage; relevant individuals, agencies and organizations in accordance with the civil procedure law.

- When an illegal marriage is annulled, the two partners of such marriage shall stop their husband and wife relation. The rights and obligations of parents and children shall be settled according to provisions on rights and obligations of parents and children upon divorce. Property relations, obligations and contracts between the parties shall be settled according to Article 16 of the law on marriage and family.

b) Marriage relations that are not recognized

- These are cases where men and women are eligible for marriage under the provisions of the Law on Marriage and Family, living together as husband and wife without marriage registration. A man and a woman living together as husband and wife may have common children and common property. Although it is not against the law, the fact that men and women live together as husband and wife without marriage registration is not encouraged by the state. In case a man and woman live together as husband and wife but then register their marriage in accordance with law, the marriage relation shall be established from the time of marriage registration. In addition, it also applies to cases where a man and a woman have registered their marriage at an agency that is not competent and when one or both of the male and female partners request the court to settle, the court shall issue a decision declaring not to recognize the marriage relation between the partners, and at the same time annul the marriage certificate and notify the civil status agency that has registered the marriage for handling in accordance with the Law on Marriage and Family 2014.

- Other cases that will not be recognized:

+ Same-sex marriage.

+ A married person who marries or lives together as husband and wife with another person, or is unmarried but marries or lives as husband and wife with a married person;

+ Marrying or living together as husband and wife between people of the same direct bloodline; among people with surnames within three generations; between adoptive parents and adopted children; between a person who used to be an adoptive father, mother with an adopted child, a father-in-law with a daughter-in-law, a mother-in-law with a son-in-law, a stepfather with a stepchild of a wife, a stepmother with a stepchild of a husband.

- Handling consequences of men and women living together as husband and wife without marriage registration:

Men and women who fully meet the conditions for marriage under the Law on Marriage and Family living together as husband and wife without marriage registration shall not be bound by the rights and obligations between husband and wife. Rights and obligations towards children, property, obligations and contracts between the parties shall be settled according to the provisions of Articles 15 and 16 of the Law on Marriage and Family. In case a man and woman live together as the husband and wife mentioned above but then register their marriage in accordance with law, the marriage relation will be established from the time of marriage registration.

5. RIGHTS, OBLIGATIONS BETWEEN HUSBAND AND WIFE IN A MARRIAGE RELATION

- Agreement for not living together:

Husband and wife must live together to be able to fulfill their obligations of loving, being faithful, caring for and helping each other, sharing and performing family works together. However, depending on the circumstances of each couple, they can agree on whether to live together or live separately. In case for reasons of profession, work, study, participation in political, economic, cultural, social activities and other legitimate reasons, husband and wife may not live together. Therefore, Article 19 of the Law on Marriage and Family 2014 provides:

“1. Husband and wife have the obligations to love, be faithful to, respect, attend to, care for, and help each other and share family work.

2. Unless otherwise agreed by them or due to requirements of their occupations, work or study, or participation in political, economic, cultural or social activities or for another plausible reason, husband and wife have the obligation to live together.”

Typically, it can be seen in the relationship between husband and wife working in the armed forces, health care, etc., that they have to be away from each other regularly, especially in the COVID-19 outbreak. In some cases, both husband and wife are in the front line against the epidemic. However, they know they need to temporarily put aside their feelings to continue working, and at the same time maintain a good relationship between husband and wife.

- Equal rights between husband and wife are specified in the following regulations:

+ The right to choose a place of residence (Article 20 of the Law on Marriage and Family 2014).

+ Rights and obligations of husband and wife in raising children (Article 2 of the Law on Marriage and Family 2014).

+ Obligation to implement the policy on population - family planning (Clause 3, Article 2 of the Law on Marriage and Family 2014).

+ The right to choose their careers, study and participate in economic, political, cultural and social activities.

+ The right to freedom of belief and religion (Article 22 of the Law on Marriage and Family 2014).

+ Representing each other on the basis of the right of representation in the Civil Code 2015, Article 24 of the Law on Marriage and Family 2014.

+ The right to request a divorce (Article 51 of the Law on Marriage and Family 2014 law).

6. NOTABLE ISSUES ABOUT PROPERTY OF HUSBAND AND WIFE

- Common property of husband and wife: Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; property that husband and wife inherit jointly, are given as a gift and other property that husband and wife agree to be common property; land use rights acquired by husband and wife after getting married is the common property of husband and wife, except where the spouses inherit separately, are given separately or the property is acquired through transactions with the separate property of a partner. (Clause 1, Article 33 of the Law on Marriage and Family 2014). At the same time, in Article 9, 10 of Decree No.126/2014/ND-CP, there are also provisions on lawful income of husband and wife during marriage.

- Separate property of husband and wife includes:

+ Property that each person has before marriage; privately inherited property, given separately during the marriage; property divided separately between husband and wife in accordance with the Law on Marriage and Family; property serving the essential needs of the husband and wife and other property which, as prescribed by law, belongs to the husband and wife separately.

+ Property formed from the separate property of husband and wife. Yields and profits arising from the separate property of each partner after dividing the common property as specified in Clause 1, Article 40 of the Law on Marriage and Family 2014.

- Agreed property regime: Husband and wife may agree on property determination according to one of the following contents:

a/ Property determined as common property and separate property of the husband and wife;

b/ Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;

c/ Conditions, procedures and principles of property division upon termination of the property regime;

d/ Other related contents.

When implementing the agreed property regime and issues arise that have not been agreed upon by the spouses or are unclear, Articles 29, 30, 31 and 32 of the Law on Marriage and Family 2014 shall apply, and the corresponding provisions of the property regime.

(The agreed property regime of husband and wife is implemented in accordance with the provisions of Articles 47, 48, 49, 50 and 59 of the Law on Marriage and Family 2014 and Decree No.126/2014/ND-CP dated December 31, regulating the measures to implement the Law on Marriage and Family.)

Cases of agreement not recognized by law are specified in Article 6 of Joint Circular No.01/2016/TTLT-TANDTC-VKSNDTC-BTP.

The agreement on the husband and wife's property regime will be declared invalid by the Court if it falls into one of the cases under Article 50 of the Law on Marriage and Family 2014, such as failing to comply with the validity conditions of the transaction specified in the Civil Code and other relevant laws; Violating one of the provisions of Articles 29, 30, 31 and 32 of the Law on Marriage and Family 2014; The content of the agreement seriously violates the right to alimony, inheritance and other lawful rights and interests of parents, children and other family members.

- After dividing the common property during the marriage, husband and wife have the right to agree to terminate the effect of the division of common property. The form of an agreement shall comply with Clause 2, Article 38 of the Law on Marriage and Family. “Agreement on division of common property must be made in writing. This document is notarized at the request of the husband and wife or as prescribed by law.” From the effective date of the husband and wife's agreement, the determination of common property and separate property of husband and wife shall comply with Articles 33 and 43 of the Law on Marriage and Family. The part of the property which has been divided by the husband and wife remains under the separate ownership of the husband and wife, unless otherwise agreed upon by the husband and wife. Property rights and obligations arising before the effective time of division of common property shall remain in effect, unless otherwise agreed by the parties.

7. NOTABLE ISSUES REAGARDING THE RIGHTS AND RESPONSIBILITIES TO THEIR CHILDREN

- According to the 2013 Constitution: "Parents have the responsibility to raise their children to be good citizens... The State and society do not recognize discrimination between children". Therefore, parents have the following rights and obligations:

+ Love the children, respect their opinions, take care of their studies and education so that they can develop healthily, physically, intellectually, and morally and become filial children of the family and helpful citizens of the society.

+ Guardianship or representation under the provisions of the Civil Code for minor children, adult children who have lost their civil act capacity.

+ Not to discriminate against children on the basis of gender or the marital status of parents; must not abuse the labor power of minor children or adult children who have lost their civil act capacity or are unable to work; must not incite or force their children to do illegal or unethical activities.

+ Parents have equal obligations and rights to jointly care for and raise their minor children and adult children who have lost their civil act capacity or have no working capacity and have no property to support themselves.

+ Parents have the obligation and right to educate their children, take care of and create conditions for their children to study. Parents create conditions for their children to live in a warm and harmonious family environment; set a good example for the children in all aspects; closely coordinate with schools, agencies and organizations in educating children.

+ Parents guide their children to choose a career; respect their children's right to choose a career and participate in political, economic, cultural and social activities.

+ Parents can ask concerned agencies and organizations for help in carrying out the education of their children when facing difficulties that cannot be solved by themselves.

(According to Articles 69, 71, 72 of the Law on Marriage and Family 2014)

- Altruistic gestational surrogacy is allowed:

According to Article 95 of the Law on marriage and family 2014, husband and wife have the right to request a surrogate mother when they fully meet the conditions in this Article.

+ Conditions for Altruistic gestational surrogacy are detailed in Chapter V of Decree 10/2015/ND-CP.

+ Conditions of medical examination and treatment establishments permitted to perform Altruistic gestational surrogacy are adjusted in Clause 3, Article 1 of Decree 98/2016/ND-CP.

8. ISSUES RELATING TO DIVORCE AND THE AUTHORITY OF SETTLEMENT

- Regarding form and authority:

Pursuant to Clause 14, Article 3 of the Law on Marriage and Family 2014: Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of a court. The court is the only body responsible for making a decision to terminate the marriage relationship of husband and wife. The divorce judgment of the Court can be presented in two forms: judgment or decision.

+ If both spouses agree to divorce and mutually agree to settle all matters of the husband and wife relationship upon divorce, the Court shall recognize the judgment in the form of a decision. The request for consent to divorce will be settled by the district court where one of the parties consenting to the divorce reside and work.

+ If the husband and wife have a dispute, the Court shall issue a judgment in the form of a divorce judgment. The court with jurisdiction is the district court where the defendant resides and works. In addition, Point b, Clause 1, Article 39 of the Civil Procedure Code 2015 also stipulates that the involved parties have the right to reach an agreement among themselves in writing to request the Court of the place of residence or work of the plaintiff to settle.

In the case involving a foreign element, it is necessary to consider Articles 469 and Article 470 of the 2015 Civil Procedure Code to determine the jurisdiction of the Vietnamese Court. At the same time, pay attention to the issue of consular legalization of documents made, issued or certified by competent foreign agencies for use in resolving marriage and family cases.

- Right to request divorce settlement (According to Article 51 of Law on Marriage and Family 2014)

+ Wife, husband or both have the right to request the Court to settle the divorce.

+ Parents and other relatives have the right to request the Court to settle the divorce when one of the spouses suffers from mental illness or other diseases but is unable to perceive and control his/her acts, and at the same time are victims of domestic violence caused by their husbands or wives, which seriously affects their lives and health.

To protect the interests of women and children, the law stipulates that husbands do not have the right to request divorce in cases where the wife is pregnant, giving birth or raising a child under 12 months old.

- Procedures for Divorce by mutual consent

• Step 1: Prepare documents and submit them to the competent People's Court. The dossier includes a written consent for divorce, evidence proving that the agreement on divorce by mutual consent, agreement on child rearing and division of property upon divorce is grounded and lawful.

• Step 2: Pay the fee and accept the case.

After receiving the complete dossier, within 03 days, the Chief Justice of the Court will assign the Judge to settle. If the dossier is eligible, the judge will issue a notice of fee payment and within 5 days, the couple must complete it.

Within 03 days from the date of acceptance, the involved parties will be notified of the settlement of the divorce.

• Step 3: The court prepares to consider the petition and open a public meeting to resolve the request for recognition of the divorce by mutual consent.

The time limit for preparing the application for consideration is 01 month from the date of acceptance. During this time, the Court will have to conduct mediation according to Article 207 of the Civil Procedure Code 2015. At that time, the Judge will conduct mediation to reunite the husband and wife, explaining the rights and obligations of the spouses, parents with children, about the responsibility to support,...

• Step 4: Make a decision to recognize the divorce by mutual consent

In case of successful mediation, the couple will reunite, then the Court will issue a decision to suspend the settlement of the divorce request of the two.

If the mediation fails, and the couple still wants a divorce, the Court will issue a decision to recognize the divorce by mutual consent. The marriage relationship terminates from the date the decision on recognition of the divorce by mutual consent takes legal effect.

- Procedures for divorce at the request of one spouse

 • Step 1: Complete the dossier and submit the lawsuit file to the competent Court.

• Step 2: Within 05 working days from the date of receiving the dossier, the Court will notify the acceptance of the case if the dossier is valid and notify the involved parties to the Court to carry out the procedures. pay the court fee advance. Within 07 days from the date of receipt of the Court's notice of payment of fee, the involved parties must pay the court cost in advance and submit to the Court a receipt for the collection of the court fee in advance, after that, the judge will handle the case.

After the court fee is paid, the court begins to calculate the date of acceptance.

• Step 3: Court conducts mediation and first-instance trial

The court will invite the parties to mediation at least twice, if there is a property in dispute, the court must carry out relevant proceedings such as on-site appraisal, property valuation, information verification... if there is a joint debt, the court must invite the creditor to participate as a person with related interests and obligations.

When mediation is unsuccessful and all other relevant proceedings are completed, the court will bring the case to first instance trial. The court can decide for divorce and division of custody of children, or division of joint property and joint debt.

Note: The court can also reject the divorce request if the conflict is not serious enough. When the court rejects the divorce petition, the rejected person has the right to file a petition for divorce again after 1 year.

• Step 4: The Court of Appeal continues to handle the case

After the first-instance court hears, if there is an appeal or protest, the Court of Appeal will re-trial within 2-4 months. The appellate trial panel has the right to uphold the first-instance judgment; Correct first-instance judgments; Cancel the first-instance judgment, cancel part of the first-instance judgment and transfer the case file to the first-instance court for re-handling of the case according to first-instance procedures; Cancel the first-instance judgment and terminate the settlement of the case; To suspend the appellate trial or to suspend the settlement of the case according to Clause 6, Article 308 of the Civil Procedure Code 2015.

9. ISSUES RELATED TO THE SPOUSE'S ASSETS UPON DIVORCE

- Principles of settlement of property of husband and wife upon divorce

+ The settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of the law on marriage and family.

In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. In case the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of the law on marriage and family.

+ Common property shall be divided into two, taking into account the following factors:

a/ Circumstances of the family, husband and wife;

b/ Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;

c/ Protecting the legitimate interests of each spouse in their production, business and career activities to create conditions for them to continue working to generate incomes;

d/ Each spouse’s faults in the infringement of spousal rights and obligations.

+ Common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner who receives the property in kind with a value bigger than the portion he/she is entitled to receive shall pay the value difference to the other.

+ Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property in accordance with the law on marriage and family.

A spouse who requests division of separate property which has been merged into or mixed with common property shall be paid for the value of his/her property contributed to common property, unless otherwise agreed by husband and wife.

+ The lawful rights and interests of the wife, minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves shall be protected.

- Division of property for a couple living with their family

+ When a couple living with their family get a divorce, if their property cannot be determined separately from the common property of the family, the husband or wife is entitled to division of part of the family’s common property based on the couple’s contributions to the creation, maintenance and development of the family’s common property as well as to the common life of the family. The couple shall reach agreement with their family on their portion divided from the family’s common property. If they fail to reach agreement thereon, they may request settlement by a court.

For a couple living with their family whose property can be determined separately from the family’s common property, upon divorce, such property portion of the couple shall be deducted from the family’s common property for division under Article 59 of the Law on marriage and family.

- Division of land use rights of husband and wife upon divorce

1. Land use rights being separate property of a spouse remain under his/her ownership upon divorce.

2. The division of land use rights being common property of husband and wife upon divorce shall be divided as follows:

a/ For agricultural land under annual crops or aquaculture, if both partners have the need and conditions to directly use the land, the land use rights shall be divided under their agreement. If they fail to reach agreement thereon, they may request a court to settle it according to Article 59 of this Law.

When only one partner has the need and conditions to directly use the land, that partner may continue to use the land but shall pay to the other the portion of the land use right value the latter is entitled to;

b/ When husband and wife share the right to use agricultural land under annual crops or aquaculture with their household, upon divorce, the couple’s portion of the land use right shall be separated and divided under Point a of this Clause;

c/ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use rights shall be divided according to Article 59 of this Law;

d/ The division of the rights to use land of other categories must comply with the land law.

For husband and wife living with their family and sharing no land use rights with the latter, upon divorce, the interests of the partner who has no land use rights and does not continue to live with the family shall be settled according to Article 61 of the Law on marriage and family.

- Division of common property used for business activities

A spouse who is carrying out business activities related to common property has the right to receive that property and shall pay the other the property value that the latter is entitled to, unless otherwise prescribed by the business law.

10. ISSUES RELATED TO RAISING CHILDREN UPON DIVORCE

- Agreement on the person who directly raises the children

Husband and wife shall reach agreement on the person who directly raises their children and on his and her obligations and rights toward their children after divorce. If they fail to reach agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older (instead of 9 years or older as stated in the former law), his/ her desire shall be considered.

- A child born after the termination of a marriage can still be regarded as a child conceived by the wife during the marriage period

Article 88 of the Law on Marriage and Family 2014 stipulates that A child who is born within 300 days from the time of termination of a marriage shall be regarded as a child conceived by the wife during the marriage period. When a parent does not recognize a child, he/she must have evidence and such non- recognition shall be determined by a court.

- A child under 36 months of age: shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.

- A child under 3 years old:

When parents divorce, children under 3 years old are not guaranteed to be raised by the mother, based on Article 81 of the 2014 Law on marriage and family stipulating on the Looking after, care for, raising and education of children after divorce, if the mother cannot afford to directly look after, care for, raise and educate the child or agreed otherwise by the parents in the interests of the child. the Court will consider the following factors to decide:

+ Ability to ensure material conditions: Is the mother's income, property or accommodation stable, meeting the minimum needs for food, accommodation, living, learning conditions, etc. of the child or not?

+ Ability to ensure mental conditions: Does the mother have time to take care, teach and educate her children properly? How has the mother's love for her child been until now?

- Obligations and rights of the parent who does not directly raise children after divorce

1. The parent who does not directly raise a child shall respect the child’s right to live with the person who directly raises him/her.

2. The parent who does not directly raise a child shall support this child.

3. After divorce, the person who does not directly raise a child has the right and obligation to visit and care for this child without being obstructed by any person.

- Obligations and rights of the parent directly raising children toward the person not directly raise children after divorce

The parent directly raising a child has the right to request the person not directly raising this child to fulfill the obligations prescribed in Article 82 of this Law and request this person and family members to respect his/her right to raise the child. The parent directly raising a child and family members may not obstruct the person not directly raising the child from visiting, caring for, raising and educating this child.

- Change of the person directly raising children after divorce

Authority:

At the request of a parent or a person or an organization prescribed in Clause 5, Article 84 of the Law on Family Marriage, the Court may decide to change the person directly raising the child. Depending on whether the parents can come to an agreement or not, the Court can settle this as a civil request or a civil dispute.

Grounds:

Change of the person directly raising a child shall be settled when there is one of the following grounds:

a) The parents agrees on change of the person directly raising a child in the interests of this child;

b) The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.

The child’s desire

Upon change of the person directly raising a child aged full 7 or older, this child’s desire shall be taken into account. When seeing that both parents fail to have sufficient conditions to directly raise a child, a court shall decide to assign this child to a guardian in accordance with the Civil Code. When there is the ground prescribed above, in the interests of a child, the following persons, agencies or organizations have the right to request change of the person directly raising this child:

a) Next of kin;

b) The state management agency in charge of families;

c) The women’s union.

Above are 10 notable legal points of the Law on marriage and family, we hope this information is useful to you.

By FDVN LAW FIRM

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