I’m from the UK. My Vietnamese girlfriend and I are seriously thinking about getting married and looking to get all the paperwork in order. We’re planning to stay in Vietnam. What kind of joint custody / joint property laws would affect us in the unintended event of a divorce?
In Vietnam, family matters are governed by the Vietnamese Law on Marriage and Family. According to this law, and in respect of marriage and family relations involving foreign elements, foreign laws may apply if such laws are invoked by either the Vietnamese law or by international agreements that are signed by Vietnam.
With you being a UK citizen, this case would obviously qualify as a marriage involving a foreign element. So in theory, UK law may apply. Practically speaking, Vietnamese law provides that in case of a divorce between a Vietnamese citizen and a foreigner, with the Vietnamese citizen not residing in Vietnam at the time of requesting the divorce, the law of the country where the husband and wife permanently co-reside shall apply to such divorce. As you intend to permanently stay in Vietnam and as there are no relevant bilateral or international treaties relating to this matter, Vietnamese law will therefore apply to your marriage, and also to a divorce if you are still residing in Vietnam at that time.
Under Vietnamese law, both parents have an obligation to look after, care for, educate and rear their children (minor and adult) who are disabled, have lost their civil capacity to act, have no working capacity or have no property to support themselves. When divorced parents do not agree on who will directly rear their children and on what will be their respective rights and obligations towards the children, a court shall decide on these matters on the basis of the children’s interests, whereby the wishes of children older than nine years shall be taken into account. Children below three years shall, in principle and unless the parents agree otherwise, be directly reared by the mother.
Regarding joint property, Vietnamese law has two fundamental principles. Firstly, the parties shall jointly agree on the division of the property and secondly, the personal property of each party shall belong to that party. Only if no agreement can be reached, a court shall settle the matter. To further guide the division of property, the Law on Marriage and Family states that joint property shall, in principle, be halved. Due consideration must be given to the status of the property, to each party’s situation and to each party’s contributions to the creation, preservation and development of the property. Furthermore, the legitimate rights and interests of the wife and the dependent children are to be protected, as well as the legitimate interests of each party to continue their income-generating labor. The joint property shall be divided either in kind or according to its value. In practice this means that the party that receives a portion of the joint property in kind with a higher value than to which he/she is entitled, must compensate the other party.
The above mentioned principles also apply to the division of a residential house (as long as it is located in Vietnam). In the case of a joint ownership, the party who will be allowed to continue using the house must pay the other party the value that he/she is entitled to. When the house is under private ownership, however, the house shall belong to its owner, except when the parties agree otherwise. If the house was newly built, upgraded, repaired or renovated, the owner must pay the other party a share of the value, depending on the latter party’s contribution to maintaining, upgrading, renovating and/or repairing of the house. Furthermore, the owner of the house shall have an obligation to support the other party in seeking new accommodation, whereas the other party may stay in the old house for six months in order to find a new place to reside.
If you have any legal questions you want answered, send them to legal@oivietnam.com
Bio: A member of the Paris Bar, Hadrien Wolff has been practicing law in Vietnam for six years, currently as a partner of Audier & Partners. He specializes in banking and corporate law, regularly advising major foreign banks and assisting foreign investors in setting up joint venture companies with Vietnamese partners in sensitive sectors such as media, power and natural resources
