Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of Resolution No. 35/2000/QH10 dated June 9, 2000 of the National Assembly "On the Implementation of the Law on Marriage and Family"

JOINT CIRCULAR

Guidelines for Implementing Resolution No. 35/2000/QH10 dated June 9, 2000 of the National Assembly on the Implementation of the Law on Marriage and Family

On June 9, 2000, the National Assembly of the Socialist Republic of Vietnam, Session X, adopted the new Law on Marriage and Family of the Socialist Republic of Vietnam (hereinafter referred to as the Law on Marriage and Family 2000). The National Assembly also adopted Resolution No. 35/2000/QH10 on the Implementation of the Law on Marriage and Family (hereinafter referred to as Resolution No. 35).

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On June 9, 2000, the National Assembly of the Socialist Republic of Vietnam, Session X, adopted the new Law on Marriage and Family of the Socialist Republic of Vietnam (from now on referred to as the Law on Marriage and Family 2000). The National Assembly also adopted Resolution No. 35/2000/QH10 on the Implementation of the Law on Marriage and Family (from now on referred to as Resolution No. 35).

In order to implement correctly the provisions of Resolution No. 35 of the National Assembly, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice have unified guidelines on the following points:

1. According to the provision at point a, Clause 3 of Resolution No. 35 of the National Assembly, in cases where the marital relationship was established before January 3, 1987 (the date when the Law on Marriage and Family 1986 came into effect) but not registered for marriage, if one party or both parties request a divorce, then the court will accept the case and apply the provisions on divorce of the Law on Marriage and Family 2000 to resolve the divorce case according to the general procedure. It should be noted that in cases where they only registered their marriage after the marital relationship had been established, their marital relationship will still be recognized from the date of establishment (the day they began living together as husband and wife), rather than being recognized only from the date of registration.

2. For cases where men and women lived together as husband and wife from January 3, 1987 onwards until December 31, 2000 (the date when the Law on Marriage and Family 2000 came into effect) and met the conditions for marriage but did not register for marriage and were still living together as husband and wife, according to the provision at point b, Clause 3 of Resolution No. 35 of the National Assembly, they are required to register their marriage from January 1, 2001 to January 1, 2003; therefore, it should be distinguished as follows:

a. From January 1, 2001 to January 1, 2003, if they have not registered their marriage or have registered their marriage and they request a divorce, then the court will accept the case and apply the provisions on divorce of the Law on Marriage and Family 2000 to resolve the divorce case according to the general procedure. It should be noted that if they comply with the registration requirement stipulated at point b, Clause 3 of Resolution No. 35 of the National Assembly, their relationship will still be recognized as having been established from the day they began living together as husband and wife, rather than from the date of registration.

The registration of marriage as stipulated at point b, Clause 3 of Resolution No. 35 of the National Assembly shall be guided by the Ministry of Justice.

b. After January 1, 2003, if they have not registered their marriage, according to the provision at point b, Clause 3 of Resolution No. 35 of the National Assembly, they will not be recognized as husband and wife; if one party or both parties request a divorce, then the court will accept the case to resolve and apply point b, Clause 3 of Resolution No. 35 of the National Assembly, Clause 1, Article 11 of the Law on Marriage and Family 2000, declaring them not to be recognized as husband and wife; if they request custody of children and division of property, then the court will apply Clause 2 and Clause 3 of Article 17 of the Law on Marriage and Family 2000 to resolve according to the general procedure.

c. After January 1, 2003, if they register their marriage and then one party or both parties request a divorce, then the court will accept the case and apply the provisions on divorce of the Law on Marriage and Family 2000 to resolve the divorce case according to the general procedure. It should be noted that in this case, their marital relationship will only be recognized as having been established from the date of their registration of marriage.

They can be considered as living together as husband and wife if they meet the conditions for marriage as stipulated in the Law on Marriage and Family 2000 and fall under one of the following circumstances:

- They organize a wedding ceremony when living together;

- Their living together is accepted by the family (one side or both sides);

- Their living together is witnessed by others or organizations;

- They actually live together, care for and support each other, and build a family together.

The date when men and women begin living together as husband and wife is the day they organize a wedding ceremony or the day their living together is accepted by the family (one or both sides) or the day their living together is witnessed by others or organizations or the day they actually begin living together, caring for and supporting each other, and building a family together.

3. For cases where men and women began living together as husband and wife from January 1, 2001 onwards without registering for marriage, according to the provision at Clause 1, Article 11 of the Law on Marriage and Family 2000, they will not be recognized by law as husband and wife; if one party or both parties request a divorce, then the court will accept the case to resolve and apply point c, Clause 3 of Resolution No. 35 of the National Assembly, Clause 1, Article 11 of the Law on Marriage and Family 2000, declaring them not to be recognized as husband and wife; if they request custody of children and division of property, then the court will apply Clause 2 and Clause 3 of Article 17 of the Law on Marriage and Family 2000 to resolve according to the general procedure.

4. For cases where men and women have registered for marriage and from the date this Circular takes effect onwards request a divorce or request resolution of other matters related to marriage and family, according to the provision at Clause 4 of Resolution No. 35 of the National Assembly, the application of laws under the Law on Marriage and Family for resolution will be carried out as follows:

a. For cases that the court has accepted before January 1, 2001, the Law on Marriage and Family 1986 will be applied to resolve.

b. For cases that the court accepts from January 1, 2001, the Law on Marriage and Family 2000 will be applied to resolve.

c. In cases where the court has accepted the case before January 1, 2001, but resolves the first instance, appeal, or cassation proceedings from January 1, 2001 onwards, according to the provision at point a, Clause 4 of Resolution No. 35 of the National Assembly, the court will apply the Law on Marriage and Family 1986 to resolve. However, to make the correct decision, the court needs to consider and refer to the provisions of the Law on Marriage and Family 2000 regarding the issue being resolved.

Example 1: Article 45 of the Marriage and Family Law 1986 stipulates that "in principle, the child who is still breastfeeding shall be entrusted to the mother for custody" without specifying the age. Clause 2, Article 92 of the Marriage and Family Law 2000 stipulates: "In principle, children under three years old shall be entrusted to the mother for direct custody, unless otherwise agreed by the parties"; therefore, although Article 45 of the Marriage and Family Law 1986 is still applied to decide who shall be entrusted with the custody of the child, it is necessary to consider and refer to Clause 2, Article 92 of the Marriage and Family Law 2000 to understand that the concept of "child who is still breastfeeding" refers to children under three years old, and in cases where the parties have an agreement, "children under three years old" may be entrusted to the father or another person for custody.

Example 2: Article 42 of the Marriage and Family Law 1986 stipulates one of the principles for dividing property upon divorce as: "when dividing property, the rights of the wife and minor children must be protected," Article 95 of the Marriage and Family Law 2000 stipulates one of the principles for dividing property upon divorce as "protecting the legitimate rights and interests of the wife, minor children, or adult children who are disabled, incapacitated, unable to work, and without assets to support themselves"; therefore, although the principle of Article 42 of the Marriage and Family Law 1986 is still applied, when deciding on the division of property, it is necessary to consider and refer to Article 95 of the Marriage and Family Law 2000 to protect the legitimate rights and interests of adult children who are disabled, incapacitated, unable to work, and without assets to support themselves.

Example 3: Article 42 of the Marriage and Family Law 1986 only stipulates the division of property upon divorce but does not specify the division of land use rights of the wife and husband, or jointly owned houses, nor does it provide for the resolution of the rights and interests of the wife and husband upon divorce in cases where the house belongs solely to one party as provided for in Articles 97, 98, and 99 of the Marriage and Family Law 2000; therefore, when resolving the division of land use rights of the couple or jointly owned houses, as well as resolving the rights and interests of the couple in cases where the house belongs solely to one party, although Article 42 of the Marriage and Family Law 1986 is still applied, it is necessary to consider and refer to Articles 97, 98, and 99 of the Marriage and Family Law 2000 which respectively provide for those issues to make the correct decision.

5. For cases that have been resolved by the Court according to the Marriage and Family Law 1986 and the judgments and decisions of the Court have become legally effective, the Marriage and Family Law 2000, Resolution No. 35 of the National Assembly, and this Circular shall not be applied to file a cassation or revision appeal.

6. This Circular takes effect from January 18, 2001. During implementation, if there are any difficulties or issues not yet clarified, requiring further explanation or supplementary guidance, they should be reported to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice for timely clarification or supplementary guidance.

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