HOW WOULD A MARRIED PERSON BE SANCTIONED FOR HIS/HER ADULTERY?

Legal situation: Hello, I got trouble with my marriage and I need you help. My husband and I have been married for 5 years and we have a 4-year-old daughter. Currently, I know that my husband has an affair with a female colleague at work. They traveled together and my husband rented her a house and lived with her. I would like to know if their action is illegal and how it would be sanctioned.

FDVN's opinions:

Thank you for sending your question to FDVN Law Firm (FDVN). Regarding your consulting request, please kindly see FDVN’s opinions as follows:

1. Legal issues relating to adultery:

According to Clause 1, Article 2 of Law on Marriage and Family 2014, the basic principles of the marriage and family regime include: "Voluntary, progressive and monogamous marriage in which husband and wife are equal."

According to Point c, Clause 2, Article 5 of Law on Marriage and Family 2014, these acts are prohibited: “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".

According to Clause 7 Article 3 of Law on Marriage and Family 2014, cohabitation as husband and wife means a man and a woman’s organization of their living together and consideration of themselves as husband and wife.

Section 3.1 of Joint Circular No. 01/2001/TTLT-BTP-BCA-TANDTC-VKSNDTC guiding the application of Chapter XV “Criminal offenses against the marriage and family regime” of the Penal Code issued by the Ministry of Justice – Ministry Public Security - the Supreme People's Court - the Supreme People's Procuracy provides guidance as follows: Living together like husband or wife means any married person lives with another person or any unmarried person lives with another person who he/she knows to be a married person openly or secretly but like a family. The cohabitation like husband and wife is often proved by common child (children) and the couple are considered by neighbors and the society as husband and wife, having common property, who have been educated by their families, offices and organizations but continue maintaining such relationship…

Therefore, the "monogamy" marriage principle is clearly stated in the Law on Marriage and Family. In order to protect this principle, the law has banned acts of adultery by married people. Therefore, a married person who has an affair with another person is considered violating the law.

2. Handling violations of the monogamous marriage regime

Violators of the monogamous marriage regime, depending on the nature and severity, may be administratively sanctioned or shall face criminal prosecution, specifically as follows:

Regarding administrative sanctions:

According to Clause 1, Article 59 of Decree 82/2020/ND-CP, dated July 15, 2020, a fine ranging from VND 3,000,000 to VND 5,000,000 is imposed for each of the following acts:

- Being married but getting married to another person, unmarried or unmarried but marrying someone whom he or she knows is married or has a wife;

- Being married but cohabitating as husband and wife with another person;

- Unmarried but cohabiting as husband and wife with someone they know is married.

Regarding sentences against criminals:

Violators of the monogamous marriage regime shall face criminal prosecution according to Article 182 of the Penal Code 2015 (amended and supplemented in 2017), with sentences ranging from warning to the maximum of up to 3 years in prison. In particular:

"1. Any married person who marries or cohabits with another person, any unmarried person who marries or cohabits with another person in the knowledge that he/she is already married and in any of the following circumstances shall receive a warning or face a penalty of up to 01 year's community sentence or 03 - 12 months' imprisonment:

a) The offense results in the divorce of one or both parties;

b) The offender has incurred an administrative penalty for the same offense.

2. This offense committed in any of the following circumstances carries a penalty of 06 - 36 months'' imprisonment:

a) The offence results in the suicide of the spouse or child of either party;

b) The court has issued a decision on dissolution of the marriage or compulsory termination of the cohabitation but the offender still defies such decision".

The above is FDVN's legal advice related to your consulting request. We hope this information will be useful to you.

By Vu Dinh Thang – FDVN law firm

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