Does legal separation lead to the termination of the marital relationship in Vietnam? Is it allowed to cohabitate as husband and wife with another person after legal separation in Vietnam?
What is legal separation in Vietnam?
Currently, Vietnamese marriage and family law does not have a specific definition of legal separation, nor the conditions or procedures for legal separation.
However, legal separation can be generally understood as a situation where married couples face conflicts in their marital relationship and choose not to live together, but have not yet carried out divorce procedures to end the marital relationship.
Does legal separation lead to the termination of the marital relationship in Vietnam?
According to the provisions of Clause 14, Article 3 of the Law on Marriage and Family 2014, Clause 1, Article 57 of the Law on Marriage and Family 2014, and Article 65 of the Law on Marriage and Family 2014, the marital relationship terminates at:
- The date the divorce judgment or decision by the Court takes legal effect.
- The time of death of a spouse.
- In the case where the Court declares either spouse as deceased, the marital relationship terminates according to the date of death recorded in the Court's judgment or decision.
Thus, current legal separation does not end the marital relationship. Upon legal separation, spouses still have to ensure the rights and obligations related to the relationship between husband and wife as stipulated by law.
Does legal separation lead to the termination of the marital relationship in Vietnam? Is it allowed to cohabitate as husband and wife with another person after legal separation in Vietnam?
Is it allowed to cohabitate as husband and wife with another person after legal separation in Vietnam?
Under Clause 2, Article 5 of the Law on Marriage and Family 2014 regarding the Protection of the marriage and family regime:
Protection of the marriage and family regime
...
2. The following acts are prohibited:
a/ Sham marriage or sham divorce;
b/ Underage marriage, forcing a person into marriage, deceiving a person into marriage, obstructing marriage;
c/ 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;
d/ 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;
dd/ Demanding property in marriage;
e/ Forcing a person into divorce; deceiving a person into divorce; obstructing divorce;
g/ Giving birth with assisted reproductive technology for commercial purpose, commercial gestational surrogacy, prenatal sex selection, cloning;
h/ Domestic violence;
i/ Taking advantage of marriage and family rights for human trafficking, labor exploitation or sexual abuse or committing another act for self-seeking purposes.
During the legal separation period, the two people are still legally married; therefore, if one spouse develops an emotional relationship or cohabitates as husband and wife with another person, it is considered adultery, violating ethical standards and Vietnamese marriage and family policies. This is one of the acts prohibited by law.
Does cohabiting as husband and wife with another person during legal separation in Vietnam constitute a crime?
Under Clause 1, Article 59 of Decree 82/2020/ND-CP regarding penalties for violations of marriage, divorce regulations, and violations of adultery as follows:
Violations of Marriage, Divorce Regulations, and Violations of adultery
1. A fine of between 3,000,000 VND and 5,000,000 VND shall be imposed for one of the following acts:
a) Marrying someone else while having a spouse, or marrying someone known to have a spouse;
b) Living as husband and wife with someone else while having a spouse;
c) Living as husband and wife with someone known to have a spouse;
d) Marriage or living as husband and wife between former adoptive parents and adopted children, father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and stepchildren born to the wife, stepmother and stepchildren born to the husband;
dd) Obstruction of marriage, demanding property in marriage or obstruction of divorce.
Thus, one cohabiting as husband and wife with another person during legal separation may face an administrative fine ranging from 3 to 5 million VND.
Additionally, according to Clause 1, Article 182 of the Criminal Code 2015 regarding adultery:
Adultery
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 offence results in the divorce of one or both parties;
b) The offender has incurred an administrative penalty for the same offence.
2. This offence 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.
Therefore, cohabiting as husband and wife with another person during legal separation may not only incur administrative penalties but may also lead to criminal prosecution for adultery.
Furthermore, if cohabiting as husband and wife with another person during legal separation leads to divorce or after being administratively punished for this act but continues to violate, one may receive a warning or face a penalty of up to 01 year's community sentence or 03 - 12 months' imprisonment.
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