Which cases are recognized as a spouse without marriage registration in Vietnam?

Specifically, in Judgment No. 61/2017/HNGĐ-ST dated August 30, 2017 on the divorce application of the People's Court of Cao Lanh district, Dong Thap province as follows:

"Mrs. Huynh Thi Ngoc T and Mr. Do Van T have been living together since 1983, without marriage registration.

The first time they lived together happily, in 2010, a conflict arose, caused by disagreements, and no longer harmony. Mr. To lives irresponsibly to his family, does not care about taking care of his wife and children, but often drinks and gambles. When he gets home drunk, he finds a story about scolding and beating his wife and children. Mrs. Ti had advised her many times, but Mr. To still did not change but also hit her, although she tried to mend the couple's feelings but failed. The couple has not been living together since 2012. Now, Mrs. Ti realizes that she no longer has feelings for Mr. To, and the two sides cannot heal, so she asks for a divorce from Mr. Do Van To.

Although Ms. Huynh Thi Ngoc Ti and Mr. Do Van To live together without registering their marriage, the court still determines that this is a legal marriage, the divorce will comply with the provisions of the marriage and family law.

The court then decided to let Ms. Huynh Thi Ngoc T get a divorce from Mr. Do Van T.

In the judgment, the court applied the Law on Marriage and Family 2000, which stipulates as follows:

Article 11. Marriage registration

1. Marriage must be registered with the competent State bodies (hereinafter called marriage registration offices) according to the proceedings prescribed in Article 14 of this Law.

Any marriage proceedings at variance with the provisions in Article 14 of this Law shall not be legally valid.

Man and woman who fail to register their marriage but live together as husband and wife shall not be recognized by law as husband and wife.

Divorced husband and wife wishing to remarry each other must also register their remarriage.

2. The Government shall stipulate the marriage registration in remote and deep-lying areas.

However, on June 9, 2000, the National Assembly of Vietnam passed Resolution 35/2000/NQ-QH10 on the implementation of the 2000 marriage and family law, which provided the following guidance:

3. The application of the provisions of Clause 1, Article 11 of this Law shall be implemented as follows:

a. In case the husband and wife relationship was established before January 3, 1987, the effective date of the 1986 Law on Marriage and Family, without marriage registration, marriage registration is encouraged; in case there is a request for divorce, it shall be accepted and handled by the court in accordance with the divorce provisions of the Law on Marriage and Family 2000;

…

Whether a man and woman live together as they are recognized by law will greatly affect the rights and obligations of the two parties during the marriage and divorce. If it is a legal marriage, the two parties will be protected by law and enjoy the rights according to the law. And if they want to be recognized by the law, what they need to do is register their marriage. But why is there a case where the marriage is not registered but still recognized as a legal marriage like the above judgment case?

According to the above provisions, men and women living together as husband and wife before January 3, 1987 (the effective date of the Law on Marriage and Family 1986), even if they do not register their marriage, are still recognized as legal spouses.

In addition, in Resolution 35/2000/QH10, it also stipulates cases where a man and a woman live together like other husband and wife:

+  In case a man and a woman live together as husband and wife from January 3, 1987 to January 1, 2001 but fully meet the conditions for marriage, they are obliged to register their marriage (mandatory). The time limit for registration is 2 years, from January 1, 2001 to January 1, 2003. If after January 1, 2003 they still do not register their marriage, the law will not recognize them as a legal husband and wife.

+ In case a man and woman live together as husband and wife after January 1, 2001 without marriage registration, the husband and wife relationship will not be recognized as legal spouses.

When recognized by law as legal spouses, the rights and obligations of husband and wife in marriage will be protected by law. For example, property created by one or two persons during their marriage (calculated from the date of marriage registration) is jointly owned by husband and wife, so they have equal rights to possess and use. In case after marriage, if one of the two people dies, the inheritance issue is set as follows:

- The deceased does not have a will, their estate is divided according to the law, that is, the property left is divided according to the line of heirs: father, mother, wife, husband, children of the deceased are in the first line of heirs.

- The deceased writes a will, and the inheritance is divided according to their wishes. However, the following people are also entitled to inherit, regardless of the content of the will, including minor children (under 18 years old), or adults but unable to work like physically or mentally disabled; father, mother, wife or husband of the deceased.

On the other hand, if they do not register their marriage, they are legally unmarried or unmarried, so they have the right to register their marriage with another person, as long as they do not violate the prohibition on marriage under the Marriage Law and family.

Currently, the Law on Marriage and Family 2014 of Vietnam is taking effect, stipulating:

Article 9. Marriage registration

1. The marriage must be registered and performed by a competent state agency in accordance with this Law and the civil status law.

A marriage that is not registered in accordance with this Clause is not legally valid.

In conclusion, the current law of Vietnam only recognizes legal spouses when they have registered their marriage. Men and women who cohabited without marriage registration will not be recognized by law. Therefore, when married, it is necessary to register at a state agency to best protect the rights and obligations of husband and wife in marriage, ensure a progressive, monogamous marriage.

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