#7 Family & Marriage: Men and women living together as husband and wife without a marriage registration

Hello everyone. Welcome to the channel of The Lawyers Talks. It’s nice to see you today on our new episode of our podcast.

Today, we will discuss a topic that is deeply concerning among legal matters on marriage and family, which is cohabitation as husband and wife – this also means men and women living together as husband and wife without registering their marriage. For this matter, please join me in listening to Lawyer Tran Ngoc Thuyet, a Senior Partner of BLawyers Vietnam Law Firm.

Guest

Hello Ms. Trinh and listeners of the podcast of BLawyers Vietnam Law Firm!

Host

Good morning, Lawyer Thuyet, in modern life, we often talk about the situation in which men and women live together as husband and wife and simply call it “Cohabitation”. So, from the legal perspective, what is the definition of living together as husband and wife between a man and a woman?

Guest

According to the current Law on Marriage and Family of Vietnam, cohabitation as husband and wife is when a man and a woman organize a life together and consider each other husband and wife.

As prescribed in Point d, Section 2 of Joint Circular No. 01/2001 issued to guide the former Law on Marriage and Family 2000, men and women are considered living together as husband and wife when they fall into one of the following cases:

  • Wedding ceremonies take place while they live together;
  • The cohabitation is approved by the family of both or either party;
  • The cohabitation is witnessed by others or organizations; or
  • They truly live together, take care of and help each other, and build a family together.

The beginning time of cohabitation between a man and a woman is considered the date that they celebrated their wedding; or the date they were accepted by their families; or the date their relationship was witnessed by another person or organization; or the date that they began to live together, take care of and support each other, and jointly build a family.

Host

So, currently, does Vietnamese law prohibit men and women from living together as husband and wife without registering their marriage?

Guest

No. Current Vietnamese laws do not prohibit men and women from living together as husband and wife without registering their marriage. However, in some cases this behavior will be considered a violation of marriage and family laws, including as follows:

• Firstly, a married person who lives together as a spouse with another person or unmarried person who lives together as a spouse with a married person. This shall be considered a serious violation of monogamy.

• Secondly, Vietnam laws also prohibit cohabitation as husband and wife between a man and woman with the same direct blood line or with the same surnames within three generations; or cohabitation between adoptive parents and adopted children; and

• Third, cohabitation as husband and wife between an adopted child and a person who used to be an adoptive father or mother; between father-in-law and daughter-in-law; mother-in-law and son-in-law; or father or mother and stepchild. These are a violation of the law, affecting norms, morality, and stability of family and social relationships.

Depending on the specific case, these above-mentioned acts will be subject to administrative or criminal sanctions.

Host

Thank you for sharing. As per your sharing, I understand if men and women live together as husband and wife without falling into the cases that you have just mentioned, they do not violate the law. So, are they legally recognized as a husband-and-wife relationship like married couples?

Guest

Regarding the recognition of conjugal relations between men and women living together as husband and wife without registering a marriage, Vietnamese law regulates the three cases that follow:

+ In the case of men and women living together as husband and wife before 1987: If they lived together as husband and wife before 03 January 1987 and complied with the conditions of marriage but have not registered their marriage, the marriage relation shall be recognized from the time of starting cohabitation. This is also known as a “de facto marriage.”

In this case, a man and woman are determined as living together as husband and wife if they satisfy the marriage conditions of the Law on Marriage and Family 2000 and also fall into one of the following cases:

(i) There was a wedding ceremony while they lived together;

(ii) Their cohabitation was accepted by the family of both or either party;

(iii) Their cohabitation was witnessed by another person or organization; or

(iv) They actually lived together, took care of and supported each other, and mutually contributed to family.

+ In the case of a man and woman living together as husband and wife in the period from 03 January 1987 onwards before 01 January 2001: In this period, if a man and woman lived together as husband and wife and met the requirements for marriage registration under the Law on Marriage and Family 2000 but have not yet registered their marriage and are still living together, they were obliged to register their marriage within 02 years from 01 January 2001 until 01 January 2003. If they registered their marriage within the duration of 02 years mentioned above, they shall be recognized as husband and wife from the date they started living together. After such 02 years, if the man and woman have not registered their marriage, they will not be recognized as having a marital relationship between husband and wife.

+ In the case of a man and a woman who started living together as husband and wife from 01 January 2001 onwards without registering their marriage, the couple is not recognized as husband and wife under the Law on Marriage and Family 2000.

Thus, since 01 January 2001, Vietnam has not recognized a marital relationship for two parties living together as husband and wife. The cohabitation will not give rise to rights and obligations between husband and wife for the parties.

However, it should also be noted that if two parties live together as husband and wife and then proceed to register the marriage, they have established a marital relationship from the time of the mariage registration.

Host

Thank you Lawyer Thuyet. So, what are the differences of rights and obligations between the parties with marriage registration and the parties who lived together as husband and wife without being recognized as a martial relationship?

Guest

Very differently, as the Law on Marriage and Family regulates the rights and obligations between husband and wife, including personal rights and obligations, property rights and obligations, etc., which are recognized and protected by law.

For example, there is an alimony obligation between husband and wife, meaning that one spouse is obliged to contribute money or other property to meet the other’s essential needs when they do not live together and one spouse faces difficulties or destitution due to an inability to work or not having property in which to live.

In addition, the husband and wife have the right to inherit each other’s property by will or by law.

For men and women living together as husband and wife without marriage registration, from a legal perspective, they are not husband and wife, so the rights and obligations between husband and wife under the law shall not apply to them, and their relationship shall not be protected by law.

Host

In addition to the marital relations of a man and woman under cohabitation that we have just discussed above, could you please share your opinions regarding this question: During cohabitation, if the two parties have common children, can they register the birth of their children and if so, how can they do this?

Guest

Under the law of Vietnam, children born here shall have the same rights and obligations as other children but this does not depend on their parents’ marital status, including the right to have their birth registered. The fact that the parents did not register their marriage does not affect the child’s right to birth registration.

If the father and mother of a child have not had a marriage registration, the competent authority cannot record the man’s information in the father’s information section, and the father’s entry in the Civil Status Book, and the child’s birth certificate will be left blank.

However, if the two parties would like to have the name of the man recorded as the father of the child on the birth certificate, the father must carry out the procedure of recognition of father and child relationship in accordance with the Law on Civil Status. At that time, the competent authority will handle the recognition and birth registration.

Host

Thank you for sharing. Apart from the birth registration as mentioned above, how about the rights and obligations of the parties towards common children?

Guest

As said above, children shall have the same rights and obligations as other children but this does not depend on their parents’ marital status. Accordingly, the two parties living together as husband and wife must perform their obligations towards common children in accordance with the regulations on rights and obligations between parents and children, including obligations and rights to care for, nurture, educate children, represent children, etc.… It is the same as the rights and obligations that legal husband and wife exercise towards their common children.

Host

Another issue of concern is the common property between a man and woman living together but not registering marriage. Could you please share more about how to resolve the property relationship of two parties living together as husband and wife?

Guest

If the spouses are legally married, the common ownership regime to property between them is a divisible consolidated joint ownership. Consolidated common ownership is common ownership in which the ownership proportion of each party is not determined. Accordingly, husband and wife have equal rights and obligations to property owned jointly.

For men and women living together without marriage registration, they shall not be recognized as legal spouses. Therefore, property acquired by each party during the period of cohabitation shall not be considered joint property of husband and wife. The joint ownership of property between them is only considered ownership of more than one party to the property.

According to the current Law on Marriage and Family, property relations between the cohabitation parties will be settled according to their agreement. If there is no agreement, the settlement shall be based on the regulations on common ownership between many parties as prescribed in the Civil Code. However, the Law on Marriage and Family also stipulates that the settlement of property relations between men and women living together as husband and wife must ensure the legitimate rights and interests of women and children; housework and other work related to the maintenance of common life are considered paid labor.

Host

If men and women want to jointly buy apartments, land or houses, how are the certificate of land use right and home ownership granted, and to whom are they granted?

Guest

A man and woman who have not yet registered for marriage still have the right to agree to jointly receive the transfer, purchase and sale of real estate and joint name on the certificate of land use right, and right to ownership of home and other assets attached to the land. These properties shall be treated as jointly owned property.

Regarding the issuance of a land use right certificate, Clause 2 of Article 98 of the 2013 Law on Land regulates that in the case of a land parcel with one more person under common land use rights, or house or other assets attached to land with one more person under common ownership, the certificate on land use right and home ownership must fully record the names of all persons and shall be issued to each person with each certificate.

If requested by the users or owners, only one certificate shall be jointly issued to them and given to the representative.

Thus, men and women living together without marriage registration can still be named together on the land use right certificate. This certificate shall contain the full names of both parties and will be issued to each person in each version. If there is an agreement between the parties, one certificate can be issued together and given to a representative.

Host

Also important to this topic is inheritance between men and women living together as husband and wife. Can a man or woman be living together as husband and wife and be entitled to each other’s inheritance?

Guest

According to the laws on inheritance of Vietnam, husband and wife shall be the heir at the first line of inheritance of each other, thus they are entitled to inheritance according to law.

However, for couples living together as husband and wife, the marriage is not registered, so they are not legally recognized as husband and wife, so they are not entitled to each other’s estate under the law, unless the name of one party is designated by the other party to inherit the estate in the will.

Host

Thank you very much. I also would like to ask whether the children of men and women living together without marriage registration are entitled to inherit the estate of their parents?

Guest

According to the laws on inheritance, the biological children of the deceased are heirs at the first line of inheritance.

Therefore, children are entitled to inherit the estate of their parents regardless of whether or not they were born during the marriage period, as well as whether such children are stepchildren or children born during marriage.

If it is proved that a person is the child of the bequeathed person with a blood relation, they will be entitled to the inheritance according to the law.

Host

Thank you for your useful sharing. As we can see in practice, cohabitation between a man and a woman without marriage registration also gives rise to a lot of legal disputes, and the resolution of which is sometimes not easy.

The first issue is divorce. So, currently, could the parties entering into a cohabitation request the Court for a divorce or settlement of common property or common children?

Guest

According to the current law, Vietnamese Courts still accept to settle divorce requests of two parties living together as husband and wife without marriage registration.

Accordingly, whether the parties mutually or unilaterally get divorce, the Court shall not decide whether or not to accept the divorce, but they will issue a decision on the non-recognition of marriage relationship between the parties because the nature of their marriage is not recognized by law.

As said before regarding the settlement of common children and common property, if a man or woman request the Court to settle child custody or property relations, the following principles shall be applied:

(i) Regarding child custody, the Court applies the regulations on rights and obligations of parents and children of the Law on Marriage and Family 2014 to settle disputes; and

(ii) Regarding property relations, the Court settles according to the agreement between the parties; in case the parties cannot reach an agreement, it shall be settled in accordance with the regulations of the Civil Code and other relevant laws.

However, the settlement of property relations must ensure the legitimate rights and interests of women and children. In addition, housework and other work related to the maintenance of common life are considered paid labor.

Host

Yes. Thank you, Lawyer Thuyet, for providing a lot of useful and very important information for today’s topic. I am sure that our listeners will have a better understanding about cohabitation, which is the situation in which men and women live together as husband and wife but have no marriage registration.

Guest

Thank you, Ms. Trinh, for discussing with me such a practical and intimate topic in social life. Hopefully, through this podcast episode, our listeners will find useful information for themselves and family.

Host

Thank you very much for sharing today, Lawyer Thuyet.

Hello everyone, time is limited and our podcast today would like to pause here. Thank you for listening and for your interest.

If you have any questions or concerns, please leave a comment below. Or for more information about BLawyers Vietnam, please visit our website at the link below.

Goodbye and see you soon.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.

Date: 29 November 2023

Host

Thanhnguyen
Thanh Nguyen

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Ls Trinhnguyen
Trinh Nguyen

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Featured Guest

Thuyet Tran
Thuyet Tran

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