A combination you can’t disparage

Dear hadrien and Marijn,

I’ve heard there’s a new law on marriage and family in Vietnam. I’m Australian and plan to marry my Vietnamese girlfriend next year. I already own a house in Australia and I want to make sure that my two sons from my first marriage will be the beneficiaries of the house in case anything happens to me, while all assets accrued during my new marriage will be shared property between me and my future wife. In Australia, they have prenuptial agreements. Can I create a similar agreement in Vietnam?

You heard right. On June 19, 2014, the National Assembly passed a new Law on Marriage and Family, effective January 1, 2015, but before addressing your queries, we want to discuss a few features of the new law.

You may have heard in the media that there has been a debate on whether or not the new family law would allow a civil partnership for same-sex couples. Even though this idea may have come a bit too early for Vietnam, the new law does bring some interesting and important changes to the current law, which has been in effect for over 13 years.

Firstly, the minimum age to get married in Vietnam has been increased by one year, meaning that as of January 1, 2015 women must be at least 19 while men must be at least 20 to legally get married. Another noteworthy change that did make it under the new family law is that for the first time surrogacy will – with conditions – be allowed in Vietnam. This so-called “altruistic surrogacy” is only open to couples who can medically prove that they cannot have a child on their own. In addition, the surrogate mother must have a blood link with either the husband or the wife and she cannot economically benefit from carrying the baby.

What is most relevant for your situation is that the new family law specifically deals with prenuptial agreements, allowing spouses to opt out of the default provisions of the law and to agree among themselves on how to share their assets. A prenuptial agreement in Vietnam may stipulate which assets shall be common assets, personal assets and assets to satisfy the essential needs of the family. Furthermore, it may provide for the rights and duties over the different kinds of assets; and it may detail the allowed transactions related to those assets. All matters that are not covered by the prenuptial agreement shall be governed by the default provisions of the new family law regarding matrimonial property.

The fact that your prenuptial agreement would cover assets located outside of Vietnam is something that you need to take into account. In order for an agreement such as this one to be enforceable in both Vietnam and in Australia, it is advisable to make sure that it meets the formal requirements of both jurisdictions.

With regard to Vietnamese law, the prenuptial agreement must be concluded prior to the marriage, it must be made in writing and it must be either certified or notarized in order for it to become enforceable as from the date of registration of the marriage. If you are not sufficiently fluent in Vietnamese, you must bring an interpreter with you in order to conduct the notarization or certification procedure.

We are not experts in Australian family law, but from quick research we understand that for a prenuptial agreement to be enforceable in Australia, one of the most noticeable requirements is that the agreement must contain a statement that both parties have obtained independent legal advice prior to signing. A certificate to that effect, preferably drafted by a lawyer qualified to practice in Australia, must be attached to the agreement.

If it ever comes to a dispute before a Vietnamese court about the ownership title of your house ‘Down Under,’ you may find it useful to know that, in principle, Australian law should apply. According to the Civil Code of Vietnam, the establishment, implementation, alteration and termination of rights relating to an immovable property shall be determined according to the law of the country where the immovable property is located.

Best of luck and much happiness to you and your future wife!

Every month, Hadrien and Marijn answer legal questions from Oi readers. If you have any legal question you want answered, send them to legal@oivietnam.com