Vietnam: What is the cohabitation before getting married? What legal problems may persons cohabiting before marriage face?
Is cohabitation before getting married a violation against Vietnamese law?
The Law on Marriage and Family 2014 and related legislative documents do not specify a definition and regulations on "cohabitation before getting married".
However, in Clause 7, Article 3 of the Law on Marriage and Family 2014 on the definition of “Cohabitation as husband and wife”, 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.
Basically, "cohabitation before getting married" is "Cohabitation as husband and wife", referring to couples who live together as husband and wife without marriage registration. After a certain period, they will proceed to official marriage and register their marriage according to the law if appropriate.
Thus, Vietnamese law currently does not prohibit cohabitation before getting married.
However, the case in which a married person cohabitating as husband and wife with another person, or an unmarried person cohabitating as husband and wife with a married person is a prohibited act according to the provisions of Point c, Clause 2, Article 5 of the Law on Marriage and Family 2014.
Under Clause 1, Article 59 of Decree 82/2020/ND-CP, a fine of between VND 3,000,000 and VND 5,000,000 shall be imposed on a married person cohabitating as husband and wife with another person, or an unmarried person cohabitating as husband and wife with a married person.
The above individuals may also be liable for criminal prosecution for adultery according to the provisions of Article 182 of the Criminal Code 2015:
- A warning or a penalty of up to 01 year's community sentence or 03 - 12 months' imprisonment shall be imposed if:
- The offence results in the divorce of one or both parties;
- The offender has incurred an administrative penalty for the same offence.
- If the offence results in the suicide of the spouse or child of either party, a penalty of 06 - 36 months' imprisonment shall be imposed.
What legal problems may persons cohabiting before marriage in Vietnam face?
According to the provisions of Clause 1, Article 14 of the Law on Marriage and Family 2014, a man and woman eligible for getting married under this Law who cohabit as husband and wife without registering their marriage have no rights and obligations between husband and wife.
Because there are no legal constraints or obstacles, cohabitation before getting married contains a lot of legal risks.
There are 03 risks and disadvantages of cohabitation before getting married as follows:
(1) Not be protected under the marriage and family regime by Vietnamese law
Cohabitation before getting married is not recognized as a husband-and-wife relationship by Vietnamese law. Therefore, the rights and obligations of husband and wife under the Law on Marriage and Family 2014 do not apply to cohabiting couples. These couples will not be protected by the law on marriage when having a third person in the relationship.
(2) Difficulties in registering the birth of a child
In the case of cohabiting and giving a child, birth registration for the child arises.
One of the necessary conditions for birth registration for a child is the marriage certificate of his/her parents. Moreover, according to the provisions of Clause 1, Article 88 of the Law on Marriage and Family 2014, the child who is born or conceived by the wife during the marriage period is the common child of the husband and wife.
However, because Vietnamese law does not recognize the marriage relationship between cohabiting couples, in this case, the child is not recognized as the common child of a couple.
In fact, there are many cases in which because couples do not register their marriage but only cohabitate when registering the birth of their children, the information section about the father shall be left blank as prescribed in Clause 2, Article 15 of Decree 123/2015/ND-CP on birth registration for children with unidentified parents:
Birth registration for children with unidentified parents
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2. If a child’s father is unidentified, the family name, race, native place, nationality of the child in the application for birth registration shall be determined according to respective information of his/her mother; the child’s father section in vital records and birth certificate shall be left blank.
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To declare full information about the father in the child's birth certificate, it is necessary to carry out procedures for the father-child recognition per the law on civil status.
(3) Common property, separate property
As analyzed, a man and woman eligible for getting married under this Law who cohabit as husband and wife without registering their marriage have no rights and obligations between husband and wife.
At that time, the property between the parties shall be settled according to the provisions of Article 16 of the Law on Marriage and Family 2014:
Settlement of property relations and obligations and contracts between men and women cohabiting as husband and wife without marriage registration
1. Property relations, obligations and contracts between a man and woman cohabiting as husband and wife without marriage registration shall be settled under the partners’ agreement. In case there is no agreement, they shall be settled in accordance with the Civil Code and other relevant laws.
2. The settlement of property relations must ensure lawful rights and interests of women and children. Housework and other related work to maintain the cohabitation shall be regarded as income-generating labor.
Under the legal regulations, the property of men and women cohabiting as husband and wife without marriage registration shall be settled under the partners’ agreement. However, the property division will be difficult if these couples do not break up smoothly.
At that time, the property division will be settled under the provisions of the Civil Code and other relevant provisions of law.
In many cases, the property between couples during the cohabitation period is an effort and contribution from both parties, but it bears the name of one person. Therefore, it is difficult to prove the ownership to divide the property reasonably.
In general, cohabitation before getting married has many potential legal risks. Therefore, couples should consider carefully and carefully prepare before deciding to cohabitate.
What is the place for marriage registration after the cohabitation period in Vietnam?
According to the provisions of Article 17 of the Law on Civil Status 2014 and Article 37 of the Law on Civil Status 2014, both parties shall apply for marriage registration at the People's Committee of the district or commune level:
- District-level People's Committees of places of residence of Vietnamese citizens shall register the marriage involving foreign elements, specifically:
+ Between Vietnamese citizens and foreigners;
+ Between Vietnamese citizens residing in the country and Vietnamese citizens residing abroad;
+ Between Vietnamese citizens residing abroad; and
+ Between Vietnamese citizens who also have foreign citizenship and Vietnamese citizens or foreigners.
- The commune-level People's Committees of the place of residence of either of the male and female partners shall register the marriage without foreign elements.
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