Shall adultery be sanctioned while the divorce is proceeding in accordance with Vietnam’s law?

Currently, the law does not clearly define what an act of adultery is. Adultery can be understood as the behavior of a person who is married but has a romantic relationship with another person. This behavior is expressed in many different forms, may be cohabitation as husband and wife, may be marriage, etc.

From a legal perspective, it can be understood that the nature of adultery is the act of a married person under the Law on Marriage and Family but getting married or living together as husband and wife with another person. So in case the husband and wife relationship has broken down and is undergoing divorce proceedings, how is this matter understood?

Pursuant to Clause 14 Article 3 of the Law on Marriage and Family 2014 of Vietnam: “Divorce means termination of the husband and wife relation under a court’s legally effective judgment or decision”.

According to this provision, the husband and wife relationship is only terminated legally when getting divorce and a court’s legally effective judgment or decision, regardless of whether the spouses no longer live in the same house or still have feelings for each other. Therefore, we can understand that, when there is no effective judgment or decision of the court recognizing the divorce of the two parties, the husband and wife relationship still exists legally.

Thus, an act of a person who is still in a husband and wife relationship with a person and commits adultery, living together as husband and wife with another person is prohibited by law. Depending on the nature and seriousness of the violation, this act may be sanctioned as follows:

Sanctions for administrative violations according to Clause 1 Article 59 of the Decree No. 82/2020/NĐ-CP

Specifically, the above act is considered as a violation of regulations on marriage, divorce and violation of the monogamous marriage regime and shall be fined from VND 3.000.000 to VND 5.000.000 for one of the following acts:

- Being married but still getting married to another person, being single but getting married to a person known as married person.

- Being married but living as husband and wife with another person;

- Being single but living as husband and wife with another person known as married person.

A fine of up to VND 10.000.000 to VND 20.000.000 if the subjects in a cohabitation relationship such as husband and wife have a direct relationship, have the same blood, have the same family name within three generations or between adoptive parents and children.

Pursuing penal liability according to Article 182 of the Criminal Code

If the adulterous act is serious, the offender shall receive a warning or face a penalty of up to 01 year's community sentence or 03 - 12 months' imprisonment in any of the following circumstances:

- The offence results in the divorce of one or both parties;

- The offender has incurred an administrative penalty for the same offence.

This offence committed in any of the following circumstances carries a penalty of 06 - 36 months' imprisonment:

- The offence results in the suicide of the spouse or child of either party;

- The court has issued a decision on dissolution of the marriage or compulsory termination of the cohabitation but the offender still defies such decision.

From the above provisions, it can be seen that when the marriage relationship has not been repaired, both parties should still pay attention to comply with the provisions of the law. Wait until you are legally single, the marriage relationship ends with a legally valid decision/judgment, then you should move on to another relationship to avoid administrative sanctions or criminal liability.

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