Grounds for annulment of illegal marriage in Vietnam

Grounds for annulment of illegal marriage in Vietnam (Internet image)

1. What is illegal marriage?

Illegally marriage means a man and a woman’s marriage already registered at a competent state agency in which either or both of them violate(s) the marriage conditions prescribed in Article 8 of the Law on Marriage and Family 2014.

Conditions for getting married in Vietnam include:

- The man is full 20 years or older, the woman is full 18 years or older;

- The marriage is voluntarily decided by the man and woman;

- The man and woman do not lose the civil act capacity;

- The marriage does not fall into one of following cases:

+ Sham marriage or sham divorce;

= Underage marriage, forcing a person into marriage, deceiving a person into marriage, obstructing marriage;

= 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;

= 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;

(Clause 6, Article 3 of the Law on Marriage and Family 2014)

2. Grounds for annulment of illegal marriage in Vietnam

When handling a request for annulment of an illegal marriage, the Court must base itself on the marriage conditions specified in Article 8 of the Law on Marriage and Family 2014 to consider and decide to handle the illegal marriage and note a number of points as follows: :

- "The man is full 20 years or older, the woman is full 18 years or older" means a case where a man is full 20 years or older, a woman is full 18 years or older and is determined by date of birth.

If the date of birth cannot be determined, it shall be determined as follows:

+ If the year of birth is determined but the month of birth cannot be determined, the month of birth shall be determined as January of the year of birth;

+ If the year and month of birth is determined but the day of birth cannot be determined, the day of birth shall be determined as the first day of the month of birth.

For example: Ms. B was born on January 10, 1997, on January 8, 2015 Ms. B registered her marriage with Mr. A at the People's Committee of commune X. At the time of marriage registration, Ms. B was under 18 years old. (The date Ms. B turns 18 is January 10, 2015), so, according to the provisions of Clause 1, Article 9 of the Law on Marriage and Family 2000, Ms. B is already of age to get married. However, because the date of B has registered her marriage The Law on Marriage and Family has taken effect (January 1, 2015), so Ms. B has violated the marriage age conditions specified at Point a, Clause 1, Article 8 of the Law on Marriage and Family.

- "The marriage is voluntarily decided by the man and woman" is a case where a man and woman establish a husband and wife relationship with each other completely freely according to their will.

- "Marriage fraud" is an intentional act of one party or a third party in order to mislead the other party and lead to marriage consent; without this act, the deceived party has not agreed to the marriage.

- "A married person" means a person in one of the following cases:

+ A person who has married another person in accordance with the law on marriage and family but has not been divorced or there is no evidence that their spouses are dead or have not been declared dead;

+ A person who has a husband-and-wife relationship with another person before January 3, 1987, but has not yet registered their marriage or been divorced, or there is no evidence that their spouses are dead or have not been declared dead;

+ A person who is married to another person violates the conditions for marriage according to the provisions of the Law on Marriage and Family but has been recognized by the Court to have a marriage relationship by a legally valid judgment or decision of the Court and has not been divorced or has not been declared dead

- The legal provisions must be used to determine when "both parties get married" and have met the requirements for marriage.The court requires the involved parties to identify themselves and provide documents and evidence to determine when both parties have fully met the conditions for marriage as prescribed in Article 8 of the Law on Marriage and Family.

Example 1: A marriage case where one party is forced into marriage or deceived into marriage is a violation of the marriage conditions specified at Point d, Clause 1, Article 8 of the Law on Marriage and Family. However, if, after being forced into marriage or being deceived into marriage, the party who was forced into marriage or deceived into marriage knew but sympathized and continued to live in harmony, the time to be eligible for marriage is the time when the involved parties know they have been forced into marriage or deceived into marriage but still continue to live 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. On January 25, 2012, the Court issued a decision declaring Mr. A dead. On June 12, 2015, the Court opened a meeting to settle the request for annulment of the illegal marriage between Ms. B and Mr. C. At the meeting, if Ms. B and Mr. C both requested recognition of the marriage relationship, then Ms. B and Mr. C must provide the Court's decision declaring Mr. A dead to determine when Ms. B and Mr. C are eligible for marriage. In this case, the time when Ms. B and Mr. C are eligible for marriage is the time when the court determines Mr. A's death is recorded in the legally effective court's decision.

(Article 2 of Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP)

Diem My

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