#9 Marriage and Family: Rights and obligations on the caring and nurturing of common children during the marriage period and after divorce under Vietnamese law

Welcome back to The Lawyers Talk channel of BLawyers Vietnam, our dear esteemed listeners; and it is nice to be back on a new podcast today. The topic today is about an especially important matter in marriage-family life: parent’s rights and obligations of care and nurturing of children under Vietnamese legal perspectives.

The story of caring and nurturing of the child is a significant issue in daily life because these behaviors directly affect the development of an individual’s personality who will become a member of society. Hence, Vietnamese law focuses on building provisions that protect children’s rights to be cared for and nurtured, and regulate the parent’s crucial obligations for their children even during the marriage period or after divorce.

For this topic, please welcome Lawyer Tran Ngoc Thuyet, Senior Partner of BLawyers Vietnam.

Guest

Hello, Ms. Phuong Uyen and everyone! Welcome back to the podcast of BLawyers Vietnam!

Host

How does Vietnamese law regulate parent’s rights and obligations of the child?

Guest

Under the Law on Marriage and Family 2014, parents’ rights and obligations are stipulated as follows:

  • First, the parents shall love and respect the child’s opinion; and take care of the child’s learning and education so that the child can have healthy physical, intellectual and moral development, and can become a filial member of the family and a useful citizen in society.
  • Second, the parents shall be responsible for taking care of, nurturing, and protecting the minor child’s legitimate rights and obligations, and the adult child who has lost his or her civil act capacity or has no working capacity and no property to support itself.
  • Third, parents are guardians or representatives for the minor child and the adult child who has lost his or her civil act capacity under the provisions of the Civil Code.
  • Fourth, the parents shall not discriminate against the child on gender grounds or under the marital status of the parents; shall not abuse the child’s labor, or the adult child who has lost civil act capacity or has no working capacity; and shall not incite or force the child to act against law or social ethics.
Host

So, please share with us what the law regulates regarding the rights and obligations of the stepfather, stepmother, and stepchild of the husband or wife. And can the stepchild have the right to be a beneficiary of the stepfather’s or stepmother’s inheritance?

Guest

Under the Law on Marriage and Family 2014, the family member comprises wife, husband; biological parents, adoptive parents, stepfather, stepmother, wife’s parents, husband’s parents; biological child, adoptive child, wife or husband’s stepchild, daughter-in-law, son-in-law; siblings who have the same parents, siblings who have the same father but another mother, siblings who have the same mother but another father, brothers-in-law, sisters-in-law of a person who has the same parents or the same father but another mother, the same mother but another father; grandparents; grandchildren; biological aunties and biological uncles.

Accordingly, we can understand that the stepchild of the wife or husband is deemed to be a family member and faces no discrimination among other family members. The law on marriage and family has not specifically determined and defined the “stepchild.” However, based on the provisions on the rights and obligations of the stepfather, the stepmother, and the stepchild of the wife or husband, the “stepchild” is the child of a wife or husband living together.

According to Article 79 the Law on Marriage and Family 2014, the stepfather or stepmother has rights and obligations to nurture, take care for, and educate the stepchild of his or her partner living together as stipulated in Articles 69, 71, and 72 of the Law on Marriage and Family. That means the rights and obligations of the parents and the child, rights, and obligations of the parents to care for, nurture, and educate the child shall not discriminate against the stepchild or the common child of the parents.

Under Article 79 the Law on Marriage and Family 2014, the stepchild has rights and obligations to care for and take care of his or her stepfather or stepmother living with each other according to Article 70 and Article 71 of the Law on Marriage and Family. That means the child’s rights and obligations towards the parents, the parent’s rights and obligations that do not discriminate against the biological parents or the adoptive parents.

Additionally, the law on marriage and family in Vietnam prohibits the behaviors of marriage or cohabitation as spouses between people who have the same direct bloodline; between people who have relatives within three generations; between adoptive father or mother and adoptive child; between the person who is the adoptive father or mother and adoptive child, father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and the wife’s stepchild, stepmother, and the husband’s stepchild.

Host

Accordingly, does the stepchild have the right to derive an inheritance from the stepfather or stepmother under the law?

Guest

According to the legal grounds mentioned above, the stepchild is a child of a wife or husband and is the biological child of a wife or husband if such a child has the same bloodline as a wife or husband under the law.

The law on inheritance has no specific regulations as well as the definition of the heir as a stepchild. Pursuant to Article 651 of the Civil Code 2015, the heir depending on the law is stipulated and under the order as follows:

1. The heirs depending on the law are stipulated in the following order:

  1. The first level of heirs comprises: spouses, biological parents, adoptive parents, biological children, and adopted children of the deceased;
  2. The second level of heirs comprises: grandparents and siblings of the deceased; biological grandchildren of the deceased; and
  3. The third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.

2. Heirs at the same level shall be entitled to equal shares of the heritage.

3. Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died, or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.

According to the above regulations, we can see that the stepchild, proven by the bloodline relationship; the adoptive child, proven by the law relation. So, if the stepchild of a wife or the stepchild of a husband is the biological child of such a wife or such a husband under the bloodline relationship, they need to prove the right to inherit under the first level of the heirs as the biological child who can derive the heritage from their father or mother.

Additionally, Article 654 of the Civil Code 2015 has a regulation on inheritance relationships between the stepchild and the stepfather or the stepmother as follows: If a stepchild and his or her stepparents care for and support each other as though they were biologically related, they may inherit each other’s estates and may inherit by Articles 652 and 653 of the Civil Code 2015. That means they have the right to be succeeding heirs and the right to inherit under the inheritance relationships between the adoptive child and the adoptive parents or the biological parents as mentioned above.

Host

Regarding the relationships between the adoptive parents and the stepchild, what does the law stipulate on the rights and obligations of adoptive parents and the inheritance right of the adoptive child over the adoptive parents?

Guest

First of all, we must understand the definition of “the adoptive child.” According to the Law on Adoption 2010, an adoptive child is a person who has been adopted after registration at a competent authority. Thus, an adoption of a person shall proceed with the legitimate procedure under the law that is recognized as an adoptive child. The adoption shall guarantee the legitimate rights and obligations of the adoptive child and the adoptive person; be voluntary, equal, and without discrimination against male or female, and not be contrary to the law or social morality.

According to the regulations and analysis mentioned above, the adopted child, the common child or the stepchild all have the same obligations and rights to be cared for and nurtured by their parents and have the same obligations and rights to care for their parents without distinction as adoptive parents, stepparents, or biological parents.

Therefore, from the date the adoption relationship is established according to the provisions of the Law on Adoption, the adoptive parents and the adopted child have the rights and obligations of father, mother and child as set forth in the Law on Marriage and Family as I mentioned in previous questions.

Regarding the adoptive child’s inheritance rights, the civil law stipulates that the adoptive child has the right to inherit the heritage of the adoptive parents. Accordingly, for the adoptive child belonging to the first level of inheritance of the adoptive parents, the principle applies on being a succeeding heir over the child or grandchild of the adoptive child.

Host

Yes, this is useful information for my listeners who have family relationships of not the same bloodline. As you and listeners already know, in addition to the above family relationship issues between the parents and the child, an issue equally important is the settlement of common children after divorce.

Please share the regulation on the parent’s rights and obligations to caring and nurturing of common children under the law?

Guest

Before entering the main issue, we will try to learn about the definition of “the common child” under the Vietnamese law on marriage and family. Accordingly, to define the father, the mother, and the child, Article 88 of the Law on Marriage and Family 2014 stipulates as follows:

1. A child who is born or conceived by the wife during the marriage period is the common child of the husband and wife.

  • A child who is born within 300 days from the time of termination of a marriage shall be regarded as a child conceived by the wife during the marriage period.
  • A child who is born before the date of marriage registration and recognized by his/her parents is the common child of the husband and wife.

2. When a parent does not recognize a child, he/she must have evidence and such non-recognition shall be determined by a court.

To conclude, it can be understood that a common child is a child born during the marriage period of spouses, a child born before the date of marriage registration but recognized by spouses as a common child, and a child proven by evidence required by law that is admitted as a common child.

According to the Law on Marriage and Family 2014, taking care of, caring for, nurturing, and educating the common child after the divorce is regulated in Article 81 as follows:

  1. After a divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with the Law on Marriage and Family, the Civil Code and other relevant laws.
  2. Husband and wife shall reach an agreement on the person who directly raises their children and on his/her obligations and rights toward their children after divorce. If they fail to reach an agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/her desires shall be considered.
  3. A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agree to the parents in the interests of the child.
Host

Thus, it can be seen that regarding the principles, rights, and obligations to the direction of care and nurturing of the common children after the divorce, there are 02 circumstances: First, depending on the agreement of the parents and being recognized by the Court; and second, the Court decides based on the law and the evidence from both parties’ submission.

Regardless, after the divorce, only the spouse has the right to care for and nurture the common child. So, what does the law stipulate about the person who does not directly raise a common child?

Guest

As I mentioned above, after the divorce, the parents still have rights and obligations to care, nurture and education of the minor child and the adult child who has lost civil act capacity or has no capacity to work and no property to support itself under Law on Marriage and Family, the Civil Code, and other relevant laws.

Regarding the person who does not directly raise the common child, Article 82 of the Law on Marriage and Family regulates his or her rights and obligations as follows:

  1. First, the parent who does not directly raise a child shall respect the child’s right to live with the person who directly raises him/her;
  2. Second, the parent who does not directly raise a child shall support this child; and
  3. Third, after divorce, the person who does not directly raise a child has the right and obligation to visit and care for this child without being obstructed by any person.

The parent who directly raises a child has the right to request a court restrict the right of the other parent who does not directly raise this child if the latter takes advantage of his/her visit to and care for the child to obstruct or adversely affect looking after, caring for, raising and educating this child.

Host

Yes, by the previous question and answer, we can clearly understand the parents’ rights and obligations after divorce in a relationship with the common child. So, what is the law regulating the rights and obligations of the parent who directly raises the common child towards the other parent?

Guest

The law on marriage and family regulates not only the provisions on the relationship between each parent and the common child after the divorce but also the provisions on the rights and obligations of the parent who directly raises the common child towards the other parent who does not directly raise the common child as follows:

  1. First, the parent who directly raises the common child has the right to request the parent who does not directly raise the common child to perform obligations under Article 82 of the Law on Marriage and Family 2014 that I mentioned in the previous question, and request the parent who does not directly raise the common child and his/her family respect their right to directly raise the common child.
  2. Second, the parent directly raising a child and family members may not obstruct the person not directly raising the child from visiting, caring for, raising, and educating this child.
Host

As lawyers and listeners all know, although there are divorces by mutual consent, in addition, there are also many complicated divorces, causing disputes about custody rights and common property relations during the divorce and after the divorce.

The law on marriage and family has provisions on the rights and obligations of the parent who directly raises the common child and the person who does not directly raise the common child. However, after the divorce, the parent who directly raised the common child and the person who does not directly raise the common child do not comply with such provisions, this can lead to disputes about custody rights as well as visitation rights. So please tell us about how the law settles such circumstances?

Guest

Yes. There are many disputes related to custody rights and visitation rights after a divorce. In such cases, both parties can agree with each other to find a harmonized solution to guarantee their rights and obligations; or if they fail to agree, request the Court to resolve the issue of changing the right of the person who directly raises the common child.

According to Article 84 of the Law on Marriage and Family 2014, the change of the right of the person who directly raises the common child is stipulated as follows:

1. At the request of a parent or a person or an organization prescribed in Clause 5 of this Article, a court may decide to change the person directly raising a child.

2. Changing of the person directly raising a child shall be settled when there is one of the following grounds:

  1. The parents agree on changing of the person directly raising a child in the interests of the child;
  2. The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.

3. Upon change of the person directly raising a child aged full 7 or older, this child’s desire shall be taken into account.

4. When seeing that both parents fail to have sufficient conditions to directly raise a child, a court shall decide to assign this child to a guardian in accordance with the Civil Code.

5. When there is the ground prescribed at Point b, Clause 2 of this Article, in the interests of a child, the following persons, agencies or organizations have the right to request the change of the person directly raising this child:

  1. Next of kin;
  2. The state management agency in charge of families;
  3. The state management agency in charge of children; and
  4. The women’s union.

Accordingly, whether the request for the change of the right of the person who directly raises the common child is approved depends on the determination of the Court based on the effective evidence from each party’s submission which is attached to the petition dossier.

Host

In the other perspective of the parent’s rights and obligations to nurture and take care of the common child, may you share whether the parent can be restricted from these parental rights. And what are the legal grounds for such cases?

Guest

Under Article 85 of the Law on Marriage and Family, the law only regulates the restriction of parent rights towards the minor child as follows:

1. A parent shall have his/her rights toward a minor child restricted when:

  1. He/she is convicted of one of the crimes of intentionally infringing upon the life, health, dignity or honor of the child or committing acts of seriously breaching the obligations to look after, care for, raise and educate children;
  2. He/she disperses property of the child;
  3. He/she leads a depraved life;
  4. He/she incites or forces the child to act against the law or social ethics.

2. On a case-by-case basis, a court shall itself, or at the request of the persons, agencies or organizations prescribed in Article 86 of this Law, issue a decision disallowing a parent to look after, care for and educate a child or manage the child’s own property or act as the child’s representative at law for between 01 and 05 years. The court may consider shortening this period.

Host

As mentioned above, who has the right to request to restrict the parent’s rights towards the minor child in the above case? And which competent agencies have the authority to settle?

Guest

According to the Law on Marriage and Family 2014, individuals and organizations have the right to request the Court restrict the parent’s rights towards the minor child:

  1. First, a parent of a minor child;
  2. Second, next of kin;
  3. Third, a guardian of a minor child;
  4. Fourth, the state management agency in charge of families;
  5. Fifth, the state management agency in charge of children; and
  6. Finally, the women’s union.

We should note that the Court is the sole competent authority to settle the request on the restriction of the parent’s rights toward the minor child, and only the Court has the authority to declare the restriction of the parent’s rights toward the requested person.

Host

Could you please analyze more specifically the legal consequences that a parent shall bear when the Court declares a restriction on their rights to a minor child?

Guest

When a parent has his/her rights toward a minor child restricted by a court, the other parent shall exercise the rights to look after, raise, care for, and educate this child, manage the child’s own property and act as the child’s representative at law.

A guardian shall be assigned to look after, care for and educate a minor child and manage the child’s own property in accordance with the Civil Code and this Law in the following cases:

  1. First, both parents have their rights toward the minor child restricted by a court;
  2. Second, the parent who does not have his/her rights toward the minor child restricted does not have sufficient conditions to perform the rights and obligations toward the child; and
  3. Third, a parent has the rights toward the minor child are restricted and the other parent of the child has not been identified yet;

The most important issue is that a parent who faces restrictions of parent’s rights towards the minor child is still obligated to provide support to the child.

Host

There are many foreigners entering Vietnam to study, work, and live, and after getting married in Vietnam, they can get married to other foreigners or Vietnamese citizens under the Vietnamese law on marriage and family.

Hence, please share whether the foreign parent in this case shall comply with the rights and obligations to nurture and take care of under the Vietnamese law?

Guest

Under the Vietnamese law on marriage and family, Article 126 of the Law on Marriage and Family 2014 stipulates the following about foreign marriage:

1. For marriages between Vietnamese citizens and foreigners, each party shall comply with his/her country’s law on marriage conditions; if their marriage is conducted at a competent Vietnamese state agency, the foreigner shall comply with this Law’s provisions on marriage conditions.

2. Marriages between foreigners permanently residing in Vietnam at competent Vietnamese agencies must comply with the Law on Marriage and Family’s provisions on marriage conditions.

From the above regulations, we can understand that a foreigner, whether married to a Vietnamese or a foreigner permanently residing in Vietnam under the marriage registration at the competent authority, shall comply with the provisions of the Vietnamese law on marriage and family on marriage conditions.

Further, the basic principles of the regime of marriage and family under Vietnamese law specifically regulate that the marriage relationship between a Vietnamese citizen and a foreigner is respected and protected by the law. The Vietnamese law on marriage and family regulates the protection of the legitimate rights and interests of both parties in the marriage and family relationship with foreign elements, which:

1. In the Socialist Republic of Vietnam, marriage and family relations involving foreign elements shall be respected and protected by Vietnamese law and treaties to which the Socialist Republic of Vietnam is a contracting party.

2. In their marriage and family relations with Vietnamese citizens, unless otherwise provided by Vietnamese law, foreigners in Vietnam have the same rights and obligations as Vietnamese citizens.

Based on the above regulations, a foreign parent in Vietnam has the same rights and obligations as a parent who is a Vietnamese citizen, shall comply with the provisions of Vietnamese law on the rights and obligations of care and nurturing of the common child during the marriage period and after the divorce, just like the previous issues that Phuong Uyen and I discussed earlier.

Host

Yes. Thank you for your providing a lot of useful and extremely important information on today’s topic. I believe that our listeners will have a better understanding of the legal issues surrounding the rights and obligations of parents towards their children during the marriage period and after divorce according to the Vietnamese law.

Guest

Thank you, Ms. Uyen, for discussing with me such a very practical and sensitive topic in social life. I hope that through this podcast, listeners can find useful information for themselves and their families.

Host

Thank you so much, Mr. Thuyet. The podcast of The Lawyers Talk would like to stop here. Thank you for listening. Goodbye, and see you again in the next episode of the podcast.

If you have any questions or concerns, please leave a comment below.

For more information about BLawyers Vietnam, please see our website below the screen for the podcast for The Lawyers Talk.

Goodbye, and see you again.

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: 21 Jan 2024

Host

Thanhnguyen
Thanh Nguyen

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Ls Uyentran
Uyen Tran

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Featured Guest

Thuyet Tran
Thuyet Tran

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