Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of certain provisions of the Law on Marriage and Family

JOINT CIRCULAR

Guidelines for Implementing Certain Provisions of the Law on Marriage and Family

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Pursuant to the Law on Enacting Legal Normative Documents No. 17/2008/QH12;

Pursuant to the Law on Marriage and Family No. 52/2014/QH13;

Pursuant to the Law on Organization of People's Courts No. 62/2014/QH13;

On the basis of the Law on the Organization of the People's Prosecutor Office No. 63/2014/QH13;

Pursuant to Decree No. 22/2013/NĐ-CP dated March 13, 2013, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

The President of the Supreme People's Court, the Prosecutor General of the Supreme People's Procuracy, and the Minister of Justice issue this Joint Circular guiding the implementation of certain provisions of the Law on Marriage and Family No. 52/2014/QH13 (hereinafter referred to as the Law on Marriage and Family) as follows:

Article 1. Scope of Regulation

This Joint Circular guides the implementation of provisions regarding the handling of illegal marriages, agreements on the property regime of spouses declared void, and principles for resolving property of spouses upon divorce under Articles 11, 50, and 59 of the Law on Marriage and Family.

Article 2. Grounds for Annulment of Illegal Marriages

When adjudicating requests for annulment of illegal marriages, the Court must base its decision on the marriage conditions stipulated in Article 8 of the Law on Marriage and Family to examine and decide on the handling of illegal marriages, and pay attention to the following points:

1. "Men aged twenty years or older, women aged eighteen years or older" stipulated in point a, Clause 1, Article 8 of the Law on Marriage and Family refers to men who have reached twenty years of age and women who have reached eighteen years of age or older, determined according to their date of birth.

In cases where the date of birth cannot be determined, the following shall apply:

a) If the year of birth can be determined but not the month, the month of birth shall be considered as January of the year of birth;

b) If the year of birth and month of birth can be determined but not the day, the day of birth shall be considered as the first day of the month of birth.

Example: Ms. B was born on January 10, 1997, and registered her marriage with Mr. A at the People's Committee of Commune X on January 8, 2015. At the time of registration, Ms. B had not yet reached eighteen years of age (Ms. B would reach eighteen years of age on January 10, 2015). According to Article 9, Clause 1 of the Law on Marriage and Family 2000, Ms. B had reached the age of marriage, however, since the Law on Marriage and Family had taken effect on January 1, 2015, Ms. B violated the marriage age condition stipulated in point a, Clause 1, Article 8 of the Law on Marriage and Family.

2. "The marriage is decided voluntarily by both parties" stipulated in point b, Clause 1, Article 8 of the Law on Marriage and Family refers to the case where men and women establish marital relations completely freely according to their will.

3. "Marriage fraud" stipulated in point b, Clause 2, Article 5 of the Law on Marriage and Family refers to the intentional act of one party or a third party aimed at misleading the other party into agreeing to marry; if such an act did not occur, the misled party would not have agreed to marry.

4. "A person who has a wife or husband" stipulated in point c, Clause 2, Article 5 of the Law on Marriage and Family refers to a person falling into one of the following situations:

a) A person who has married another person in accordance with the laws on marriage and family but has not divorced or there is no event of death of their spouse or their spouse has not been declared dead;

b) A person who established marital relations with another person before January 3, 1987, without registering the marriage and has not divorced or there is no event of death of their spouse or their spouse has not been declared dead;

c) A person who has married another person in violation of the marriage conditions stipulated in the Law on Marriage and Family but whose marital relationship has been recognized by a court judgment or decision that has become legally effective and has not divorced or there is no event of death of their spouse or their spouse has not been declared dead.

5. Determination of the Time Point "Both parties have met all marriage conditions" stipulated in Clause 2, Article 11 of the Law on Marriage and Family must be based on the provisions of the law. The Court requires the parties to determine and provide evidence to ascertain the time point when both parties have met all marriage conditions as stipulated in Article 8 of the Law on Marriage and Family.

Example 1: In cases where a marriage occurs due to one party being coerced into marriage or deceived into marriage, it violates the marriage conditions stipulated in point d, Clause 1, Article 8 of the Law on Marriage and Family. However, if after being coerced into marriage or deceived into marriage, the coerced or deceived party becomes aware but shows understanding and continues to live harmoniously, the time point when they meet the marriage conditions is the time when the party knows they were coerced or deceived into marriage but still lives together as husband and wife.

Example 2: On January 15, 2005, Ms. B married Mr. A. On January 15, 2010, Ms. B married Mr. C again. On January 25, 2012, the Court issued a decision declaring Mr. A dead. On June 12, 2015, the Court convened a hearing to resolve the request for annulment of the illegal marriage between Ms. B and Mr. C. At the hearing, both Ms. B and Mr. C requested recognition of their marital relationship, so they must provide the Court's decision declaring Mr. A dead to determine the time point when Ms. B and Mr. C met the marriage conditions. In this case, the time point when Ms. B and Mr. C met the marriage conditions is the time recorded in the Court's decision declaring Mr. A dead that has become legally effective.

Article 3. Acceptance and Resolution of Requests to Invalidate Invalid Marriages

1. The agencies, organizations, and individuals specified in Article 10 of the Marriage and Family Law have the right to request the Court to invalidate invalid marriages. Along with the request, the requester must submit the Certificate of Marriage for individuals specified in Clause 1 of Article 10 of the Marriage and Family Law or other documents proving that they have registered their marriage; evidence proving that the marriage violates the conditions for marriage stipulated in Article 8 of the Marriage and Family Law.

In cases where spouses have registered their marriage but cannot provide the Certificate of Marriage due to loss, they must have confirmation from the People's Committee that issued the Certificate of Marriage.

2. The Court accepts and resolves requests to invalidate invalid marriages according to the provisions of Clause 6 of Article 3 and Article 11 of the Marriage and Family Law when such marriages have been registered at the competent authority. The competent authority for registering marriages is determined according to the regulations on household registration and marriage and family laws.

In cases where male and female parties register their marriage at the correct competent authority for registering marriages and request the Court to invalidate the invalid marriage, they shall follow the guidance provided in Article 4 of this Joint Circular.

In cases where the marriage is registered at an incorrect competent authority or where male and female parties cohabit as husband and wife without registering their marriage and request the Court to resolve the matter, they shall follow the guidance provided in Clause 3 and Clause 4 of this Article.

3. In cases where male and female parties have registered their marriage but the marriage was registered at an incorrect competent authority (regardless of whether there was a violation of the marriage conditions or not), and they request the Court to invalidate the invalid marriage or seek divorce, the Court shall apply Article 9 of the Marriage and Family Law to declare the non-recognition of their marital relationship, invalidate the Certificate of Marriage, and notify the household registration authority that registered the marriage to handle the matter according to the provisions of Article 13 of the Marriage and Family Law. If there is a request for the Court to resolve issues related to rights and obligations towards children; property, obligations, and contracts between the parties, it will be resolved according to the provisions of Articles 15 and 16 of the Marriage and Family Law.

4. In cases where male and female parties cohabit as husband and wife without registering their marriage (regardless of whether there was a violation of the marriage conditions or not) and request the Court to invalidate the invalid marriage or seek divorce, the Court shall accept and resolve the matter and apply Articles 9 and 14 of the Marriage and Family Law to declare the non-recognition of their marital relationship. If there is a request for the Court to resolve issues related to rights and obligations of parents and children; property relations, obligations, and contracts between the parties, it will be resolved according to the provisions of Articles 15 and 16 of the Marriage and Family Law.

Article 4. Handling Requests to Invalidate Invalid Marriages

1. When examining and resolving requests related to invalidating invalid marriages, the Court must base its decision on the request of the parties and the conditions for marriage and recognition of marital relationships stipulated in Articles 8 and 11 of the Marriage and Family Law.

2. In cases where both parties did not meet the conditions for marriage at the time of marriage but later met the conditions for marriage stipulated in Article 8 of the Marriage and Family Law, the Court shall handle the matter as follows:

a) If both parties request the Court to recognize their marital relationship, the Court shall decide to recognize their marital relationship from the date when both parties met the conditions for marriage.

Example 1: Mr. A was born on January 25, 1996, and Ms. B was born on January 10, 1995. On January 8, 2015, Mr. A and Ms. B registered their marriage. On September 25, 2016, the Court convened a hearing to resolve the request to invalidate the invalid marriage. At the hearing, both Mr. A and Ms. B requested recognition of their marital relationship. If all other marriage conditions are met, the Court shall consider recognizing the marital relationship of Mr. A and Ms. B from the date when both reached the age of marriage, i.e., from January 25, 2016.

Example 2: Mr. A and Ms. B legally registered their marriage on July 5, 2009, and had not divorced. On May 10, 2012, Mr. A married Ms. C. Ms. B died on June 12, 2014. On May 15, 2015, the Court convened a hearing to resolve the request to invalidate the invalid marriage between Mr. A and Ms. C. At the hearing, both Mr. A and Ms. C requested recognition of their marital relationship. If all other marriage conditions are met, the Court shall consider recognizing the marital relationship of Mr. A and Ms. C from the date of Ms. B's death, i.e., June 12, 2014.

Example 3: Ms. A was declared incapable of civil acts by the Court on May 27, 2009. Ms. A registered her marriage with Mr. B on September 30, 2009. The Court decided to revoke the declaration of Ms. A's incapacity of civil acts on August 12, 2012. On February 12, 2015, the Court convened a hearing to resolve the request to invalidate the invalid marriage. At the hearing, both Ms. A and Mr. B requested recognition of their marital relationship. If all other marriage conditions are met, the Court shall consider recognizing the marital relationship of Ms. A and Mr. B from the date when Ms. A was no longer declared incapable of civil acts according to the effective decision of the Court.

b) If one or both parties request to invalidate the invalid marriage or if one party requests recognition of the marital relationship while the other does not make any request, the Court shall decide to invalidate the invalid marriage. In cases where there is a lawsuit or request for the Court to resolve the matter, the rights and obligations of parents and children; property relations, obligations, and contracts between the parties from the date of marriage to the date of invalidation of the invalid marriage shall be resolved according to the provisions of Article 12 of the Marriage and Family Law.

c) In cases where both parties request the court to grant a divorce or one party requests a divorce while the other requests recognition of the marital relationship, the court shall grant the divorce. In this case, the rights and obligations of parents and children from the time of marriage to the time of divorce shall be resolved according to the provisions on the rights and obligations of parents and children upon divorce; property relations, obligations, and contracts between the parties from the time of marriage until before the time they meet the conditions for marriage shall be resolved according to Article 16 of the Marriage and Family Law; property relations, obligations, and contracts between the parties from the time they meet the conditions for marriage to the time of divorce shall be resolved according to Article 59 of the Marriage and Family Law.

3. In cases where both parties have registered their marriage but at the time the court resolves the matter, the two parties still do not meet the conditions for marriage as stipulated in Article 8 of the Marriage and Family Law, the following shall be implemented:

a) If there is a request to annul the illegal marriage, the court shall decide to annul the illegal marriage;

b) If one or both parties request a divorce or request recognition of the marital relationship, the court shall reject their request and decide to annul the illegal marriage.

In cases where the decision is made according to the guidance in points a and b of this clause, the court shall apply the provisions of Article 12 of the Marriage and Family Law to resolve the legal consequences of the annulment of an illegal marriage.

4. When handling requests to annul illegal marriages, the court must base its determination on the provisions of the marriage and family laws in effect at the time the marital relationship was established to determine whether the marriage is illegal. The procedures and processes for resolving requests to handle illegal marriages shall be carried out according to the provisions of the Marriage and Family Law and the civil procedure law in effect at the time of resolution. For requests to annul illegal marriages involving cases of southern cadres and soldiers who were resettled in the north from 1954, who had spouses in the south but married others in the north, the matter shall still be handled according to Circular No. 60/TATC dated February 22, 1978 of the Supreme People's Court "Guidelines for Resolving Cases of Southern Cadres and Soldiers Who Were Resettled in the North and Married Others."

Article 5. Procedure for examining agreements on spousal property regime that are void

1. The following agencies, organizations, or individuals, according to the provisions of the civil procedure law, have the right to request the court to declare an agreement on the spousal property regime void due to the agreement on the spousal property regime falling under the circumstances specified in Clause 1 of Article 50 of the Marriage and Family Law:

a) Spouses or both spouses who have agreed on the spousal property regime;

b) Persons whose rights and legitimate interests have been violated or guardians of such persons due to an agreement on the spousal property regime.

2. The procedures and processes for resolving requests for the court to declare an agreement on the spousal property regime void shall be carried out according to the provisions of the civil procedure law.

3. In cases where the court is currently resolving a civil matter related to the content of the agreement on the spousal property regime and there is a request for the court to examine the agreement on the spousal property regime that is void, the court must examine and decide whether the agreement on the spousal property regime related to the disputed property is void or not. In cases where the agreement on the spousal property regime is partially or entirely void, the court must declare the agreement on the spousal property regime partially or entirely void in the judgment or decision to serve as the basis for resolving the rights and obligations of the parties.

Example: Mr. A and Ms. B established a written agreement to establish the spousal property regime before their marriage, which stated that the land use right, identified as Mr. A's personal property before marriage (which had actually been mortgaged to Bank C), would become joint property after marriage. Due to the inability to repay the debt when it became due, Bank C requested the disposal of the collateral, which was the land use right, but Mr. A disagreed and claimed that it was joint property rather than his personal property. Bank C filed a lawsuit with the court requesting Mr. A to repay the debt, requesting the annulment of the agreement on the spousal property regime between Mr. A and Ms. B, and requesting the disposal of the mortgaged land use right of Mr. A. In this case, the court must determine that the agreement establishing the spousal property regime of Mr. A is void due to a serious violation of Bank C's rights over the property that Mr. A had mortgaged.

Article 6. Determination of the Agreement on Spousal Property Regime as Void

1. The agreement on spousal property regime may be declared wholly or partially void by the Court.

a) In the case where the agreement on spousal property regime is declared wholly void by the Court, the spousal property regime prescribed by law shall be applied;

b) In the case where the agreement on spousal property regime is declared partially void, the contents not declared void shall still be applied; for the part declared void, the corresponding provisions on spousal property regime prescribed by law shall be applied.

2. The Court decides to declare the agreement on spousal property regime void when it falls under the cases stipulated in Clause 1 of Article 50 of the Marriage and Family Law and takes note of the following situations:

a) The agreement on spousal property regime is void due to violation of the right to secure housing of the wife or husband as provided for in Article 31 and point b, Clause 1 of Article 50 of the Marriage and Family Law, which means that such agreement allows one party to dispose of the only residence of the couple, leading to the wife or husband having no place to live or failing to ensure minimum living space, living conditions, safety, and environmental hygiene as prescribed by law on housing;

b) The content of the agreement on spousal property regime is void due to serious violation of the right to maintenance, the right to inheritance, and other legitimate rights and interests of parents, children, and other family members as provided for in point c, Clause 1 of Article 50 of the Marriage and Family Law, which means that such agreement aims to evade the maintenance obligation prescribed from Article 110 to Article 115 of the Marriage and Family Law or to deprive those heirs who are not dependent on the content of the will according to the Civil Code, or violates the legitimate rights and interests of parents, children, and other family members as prescribed by the Marriage and Family Law and related laws.

Example 1: Mr. A has the obligation to provide maintenance for Mr. B. Later, Mr. A marries Mrs. C and agrees to transfer all his assets to Mrs. C, thereby leaving no assets to fulfill his maintenance obligation towards Mr. B. In this case, the agreement on property between Mr. A and Mrs. C is void.

Example 2: Mr. A has an adult child who is unable to work. Subsequently, Mr. A marries Ms. B. Mr. A and Ms. B have agreed to establish a spousal property regime, including the content that all of Mr. A's assets will be inherited by Ms. B upon Mr. A's death. In this case, the part of the agreement on spousal property regime between Mr. A and Ms. B concerning Mr. A's assets that the child who has lost capacity for civil acts is entitled to inherit according to the law is void.

Article 7. Principles for Handling Spousal Property Upon Divorce

1. When divorcing, spouses have the right to negotiate with each other on all issues, including the division of property. In the case where spouses cannot reach an agreement and make a request, the Court must consider and decide whether to apply the spousal property regime according to the agreement or according to the law, depending on the specific circumstances, the Court handles as follows:

a) In the case where there is no written agreement on spousal property regime or the written agreement on spousal property regime is declared wholly void by the Court, the spousal property regime prescribed by law shall be applied to divide the spousal property upon divorce;

b) In the case where there is a written agreement on spousal property regime and this document is not declared wholly void by the Court, the contents of the written agreement shall be applied to divide the spousal property upon divorce. For issues not agreed upon by the spouses or not clearly agreed upon or declared void, the corresponding provisions at Clauses 2, 3, 4, and 5 of Article 59 and Articles 60, 61, 62, 63, and 64 of the Marriage and Family Law shall be applied to divide the spousal property upon divorce.

2. When handling divorce, if there is a request to declare the agreement on spousal property regime void, the Court considers and resolves this request concurrently with the request to divide spousal property upon divorce.

3. When dividing the common property of spouses upon divorce, the Court must determine whether the spouses have rights and obligations regarding third parties to bring these third parties into the proceedings as interested parties. If the spouses have rights and obligations regarding third parties and these third parties make a request for resolution, the Court must resolve this when dividing the common property of the spouses. If the spouses have obligations towards third parties but these third parties do not make a request for resolution, the Court guides them to resolve this through another lawsuit.

4. When applying the spousal property regime prescribed by law to divide the spousal property upon divorce, the principle is that the common property of the spouses is divided equally, but the following factors are taken into account to determine the proportion of the property that the spouses receive:

a) "The circumstances of the family and of the spouses" refers to the status regarding legal capacity, capacity for acts, health, property, ability to generate income through labor after divorce of the spouses and other members of the family whom the spouses have personal and property rights and obligations according to the Marriage and Family Law. The party facing more difficulties after divorce receives a larger share of the property or is given priority to receive certain types of property to ensure their livelihood and stability, but this must be consistent with the actual circumstances of the family and the spouses;

b) "The contribution of the spouses to the creation, maintenance, and development of the common property" refers to the contribution of personal property, income, household work, and labor of the spouses in creating, maintaining, and developing the common property. A spouse who stays at home to care for children and the family without working outside is considered to have generated equivalent income to that of the spouse who works outside. The party with greater contribution receives a larger share;

c) "Protection of the legitimate interests of each party in production, business, and profession to enable both parties to continue generating income through labor" The division of the couple's joint property must ensure that the spouse engaged in a profession can continue to practice their profession; and that the spouse engaged in production and business activities can continue to produce and operate to generate income, and must pay the other party the difference in value of the assets. Protecting each party's legitimate interests in production, business operations, and professional activities shall not affect the minimum living conditions of the spouses and minor children, or adult children who have lost their civil capacity.

Example: The couple has joint property consisting of a car worth 400 million VND which the husband uses for taxi services, and a grocery store worth 200 million VND which the wife operates. When resolving the divorce and dividing the joint property, the court must consider assigning the grocery store to the wife and the car to the husband so they can continue their businesses and generate income. The husband, who receives a larger share of the asset value, must pay the wife 100 million VND.

d) "Fault of each party in violating the rights and obligations of the spouses" is the fault of the wife or husband violating the personal rights and property rights of the spouses leading to divorce.

Example: In cases where the husband engages in domestic violence, infidelity, or squandering of assets, when resolving the divorce, the court must consider the husband's fault when dividing the couple's joint property to ensure the wife's and minor children's legal rights and interests.

5. The value of the couple's joint property and the individual property of the wife and husband is determined according to the market price at the time of the first-instance trial of the case.

6. When dividing property upon divorce, the court must consider protecting the legal rights and interests of the wife, minor children, and adult children who have lost or are restricted in their civil capacity and lack the ability to work and have no assets to support themselves.

Example: When dividing a house, which is the couple's joint property and their sole place of residence, if it cannot be divided physically, the court will consider and decide that the spouse directly raising minor children or those with limited or lost civil capacity may receive the physical asset and pay the corresponding value of the divided portion to the other spouse if requested.

Article 8. Effective Date

1. This Circular takes effect from March 1, 2016.

2. Cases of marriage and family affairs accepted by the court before this Circular takes effect but are newly tried at the first instance, appeal, cassation, or retrial after the date this Circular takes effect shall apply this Circular for resolution.

3. Judgments and decisions of the court that have become legally binding before this Circular takes effect shall not apply the guidance of this Circular for cassation or retrial procedures.

Article 9. Interpretation, Amendment, and Supplement of the Joint Circular

During implementation, if there are issues requiring interpretation or necessitating amendment or supplementation of the Joint Circular, courts at all levels, procuratorates, organizations, and individuals should report to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice for timely interpretation, amendment, or supplementation.