Marrying after the death of a spouse: Is there a need to get a divorce before remarrying? What are the conditions and procedures for remarriage?
- Under what circumstances can a person be declared dead?
- If the husband dies, is the wife eligible to marry another person?
- Getting married after the death of a spouse, is there a need for divorce proceedings?
- What are the conditions and procedures for marriage registration after the death of a spouse?
Under what circumstances can a person be declared dead?
Legal regulations on marriage after the death of a spouse are classified according to two different views of "death", including:
- In case of biological death of a spouse: Biological death is the end of life, termination of activities of an organism or permanent cessation of all vital activities (irreversible) of an organism. According to medicine, a person is considered dead when their brain activity is gone, from assistive devices they can have a heartbeat, breathing but will never be able to recover and maintain those activities themselves.
- In case of legal death of a spouse: Pursuant to Clause 1 Article 71 of the Civil Code 2015 of Vietnam on declaration of person dead as follows:
“Article 71. Declaration of person dead
1. A person with related rights or interests may request a court to issue a decision declaring that a person is dead in any of the following cases:
a) After three years from the effective date of a court's decision declaring a person missing, there is still no reliable information that such person is alive;
b) The person has disappeared during a war and there is still no reliable information that such person is alive for five years from the end of the war;
c) The person met with an accident, catastrophe or a natural disaster and there is still no reliable information that such person is alive for two years from the end of such accident, catastrophe or natural disaster, unless otherwise provided for by law;
d) The person has been missing for five consecutive years or longer and there is no reliable information that such person is still alive; this time limit shall be calculated in accordance with Clause 1 Article 68 of this Code.
2. A court shall, according to the cases specified in Clause 1 of this Article, determine the date of death of a person declared dead.
3. The decision on declaration of a dead person issued by a court must be sent to the People’s Committees of commune where the dead person resides for record as prescribed in law on civil status affairs.”
Thus, legal death is understood as the fact that a person has been declared dead by a Court through a legally effective decision.
If the husband dies, is the wife eligible to marry another person?
- In case of biological death: Pursuant to Article 65 of the Law on Marriage and Family 2014 of Vietnam, the time of marriage termination is as follows:
“Article 65. Time of termination of marriage
A marriage is terminated from the time of death of a spouse.”
Thus, at the time of the biological death of the spouse, their marital relationship with the other spouse will end. According to that, it is completely legal to marry another person after the death of a spouse.
- In case of legal death: Pursuant to Article 65 of the Law on Marriage and Family 2014 of Vietnam, the time of marriage termination is as follows:
“Article 65. Time of termination of marriage
…
In case a court declares a spouse to be dead, the time of termination of the marriage is the date of death stated in the court’s judgment or decision.”
According to the above regulations, the marriage of the spouse who is declared dead will terminate at the time when the Court's judgment or decision takes legal effect. Therefore, after the marriage has ended, the remaining spouse can carry out the marriage procedure with another person in accordance with the law.
Marrying after the death of a spouse: Is there a need to get a divorce before remarrying? What are the conditions and procedures for remarriage?
Getting married after the death of a spouse, is there a need for divorce proceedings?
Pursuant to Clause 2 Article 4 of Decree 123/2015/ND-CP of Vietnam on determining the contents of death registration as follows:
“Article 4. Birth registration and death registration contents
…
2. Essential contents of an application for death registration as prescribed the Law on civil status: The deceased’s full name, year of birth, personal identification number (if any); place of death; cause of death; date and time of death by solar calendar; and nationality (if the deceased is a foreigner).”
Death registration contents shall be determined according to the death notice or equivalent document issued by the following competent authority:
- If a person dies at a health facility, the head of health facility shall issue a death notice;
- If a person is given a declaration of presumed death by a court, the effective judgment/decision shall replace a death notice.
Thus, according to the above regulations, if a person dies at a health facility, the head of health facility shall issue a death notice. If a person is given a declaration of presumed death by a court, the effective judgment/decision shall replace a death notice. That means, from that point on, your marital relationship has ended. You can remarry without divorce.
What are the conditions and procedures for marriage registration after the death of a spouse?
The current law of Vietnam does not stipulate the conditions for remarriage after the death of a spouse. Therefore, the conditions and procedures for remarriage will be carried out according to the same law as the normal marriage procedure. According to Article 8 of the Law on Marriage and Family 2014 of Vietnam, the conditions for marriage are as follows:
“Article 8. Conditions for getting married
1. A man and a woman wishing to marry each other must satisfy the following conditions:
a /The man is full 20 years or older, the woman is full 18 years or older;
b/ The marriage is voluntarily decided by the man and woman;
c/ The man and woman do not lose the civil act capacity;
d/ The marriage does not fall into one of the cases prescribed at Points a, b, c and d, Clause 2, Article 5 of this Law.
2. The State shall not recognize marriage between persons of the same sex.”
Pursuant to Decision 1872/QD-BTP dated September 4, 2020 on announcement of revised and supplemented administrative procedures in the field of civil status, detailing the current marriage registration procedures:
- Persons requesting marriage registration shall submit dossiers to competent commune-level People's Committees. Records include:
* Documents to be presented
+ Passport or people's identity card or citizen identification card or other papers with photo and personal information attached by a competent authority, still valid for use to prove the identity of the lover marriage registration request.
+ Proof of residence to determine jurisdiction (during the transition period).
+ Extract divorce notes for cases where Vietnamese citizens registered their permanent residence in the commune to carry out the procedures for marriage registration, and their previous divorce or marriage annulment has been resolved at a competent agency in foreign countries.
* Documents to be submitted
+ Declaration of marriage registration according to the form. Both male and female parties can make a joint declaration of marriage registration;
+ The original of the certificate of marital status issued by the competent commune-level People's Committee in case the marriage registration requester does not register his/her permanent residence in the commune, ward or township where the marriage registration procedures are carried out ( during the transition period).
- The recipient is responsible for immediately checking the entire dossier, comparing the information in the declaration and the validity of the papers in the dossier submitted and presented by the requester.
- If the application is complete and valid, the person receiving the application shall write a receipt, clearly stating the date and time of returning the results; if the dossier is incomplete or incomplete, it shall immediately guide the applicant to supplement and complete the application according to regulations; in case it is not possible to supplement or complete the dossier immediately, the recipient must make a guiding document, clearly stating the types of papers and contents to be supplemented, completed, signed, and clearly written the full name of the recipient.
- Immediately after receiving complete and valid dossiers, if they find that they are eligible for marriage as prescribed, the civil status - judicial officer shall report to the Chairman of the commune-level People's Committee.
If the chairperson of the commune-level People's Committee agrees to settle the matter, the civil status - judicial officer shall record the marriage in the marriage registration book.
When returning the results of marriage registration, the civil status - judicial officer shall guide the male and female parties to check the contents of the marriage registration book and the marriage certificate.
If the parties find that the content is correct and consistent with the marriage registration file, the judicial and civil status officer together with the male and female parties shall sign in the Book and guide the parties to sign the marriage certificate, the Chairman and the commune-level People's Committee shall organize the awarding of marriage certificates to both male and female parties, each party shall receive 01 original of the marriage certificate; the number of copies of the Marriage Extract is issued upon request.
Thus, the issue of marriage after the death of a spouse is permitted by law in both cases above. Accordingly, the marriage will terminate from the date of death of the spouse or from the date on which the Court declares that the spouse is dead in the judgment or decision. At that time, the other spouse has the right to marry another person. The marriage after the death of a spouse must ensure compliance with the provisions of the law.
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