Precedent No. 41/2021/AL was adopted by the Judicial Council of the Supreme People’s Court on February 23, 2021, and promulgated under Decision No. 42/QD-CA dated March 12, 2021, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments and decisions of the Courts regarding specific cases selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– It has value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, guidelines for handling, and legal norms to be applied in a specific case or demonstrating justice for issues not yet specifically regulated by law;
– It is of a standard nature;
– It has value in guiding the uniform application of the law in adjudication.
2. Precedent No. 41/2021/AL on the termination of de facto marriage
2.1. Source of the precedent
Appellate Civil Judgment No. 48/2010/DSPT dated July 29, 2010, of the Appellate Court of the Supreme People’s Court in Da Nang regarding the case “Dispute over inheritance division and common property division” in Kon Tum province between the plaintiff, Ms. Tran Thi Trong P1, and the defendants, Mr. Tran Trong P2 and Mr. Tran Trong P3; there are 06 persons with related rights and obligations.
Location of the precedent’s content:
Paragraphs 3 and 4 of the “Court’s Assessment” section.
2.2. Summary of the precedent’s content
– Precedent situation:
A man and a woman lived together as husband and wife without marriage registration, but later they no longer lived together, and before the 1986 Law on Marriage and Family took effect, one of them lived as husband and wife with another person. Both the first marriage relationship and the second marriage relationship were de facto marriages.
– Legal solution:
In this case, it must be determined that the first de facto marriage has terminated.
Legal provisions related to the precedent:
– Article 676 of the Civil Code of Vietnam 2005 (corresponding to Article 651 of the Civil Code of Vietnam 2015);
– Resolution No. 35/2000/NQ-QH10 dated June 09, 2000, of the National Assembly on the implementation of the 2000 Law on Marriage and Family;
– Resolution No. 02/2000/NQ-HDTP dated December 23, 2000, of the Judicial Council of the Supreme People’s Court guiding the application of several provisions of the 2000 Law on Marriage and Family.
Keywords of the precedent:
“De facto marriage”; “Termination of de facto marriage”.
CASE CONTENT:
According to the petition dated October 08, 2004, and the statements during the resolution of the case – Ms. Tran Thi Trong P1 (represented by Ms. Tran Thi S under authorization) presented:
In 1969, Mr. Tran The T1 lived with Ms. To Thi T2 and had 02 children, Tran Trong P2 and Tran Trong P3. Due to marital conflicts, Ms. T2 left for Vung Tau to live and married someone else. In 1985, Mr. T1 lived with Ms. Tran Thi S and had a common child, Tran Thi Trong P1.
In 1987, the People’s Committee of K Town granted Mr. T1 an area of 8,500m2 of garden land in Q Ward (now D Ward), K Town. After being granted the land, Mr. T1 and Ms. S were still staying at Ms. S’s parents’ house, so they only came to plant trees on the granted land. In 1993, Mr. T1 had an “application for land allocation to build a house” stating that his family of 05 members was currently staying at his parents-in-law’s house and requested a plot of land to build a house; subsequently, Mr. T1 and Ms. S built a house on this land. In 2000, Mr. T1 and Ms. S again applied for certification of house ownership, showing that the house built on the aforementioned land area belonged to him and Ms. S. On March 26, 2003 (Lunar Calendar), Mr. T1 died without leaving a will; all assets are managed and used by Mr. P2 and Mr. P3.
On October 08, 2004, Ms. P1 filed a lawsuit requesting the division of the estate left by Mr. T1. In the self-declaration dated April 15, 2009, Ms. P1 withdrew the request for inheritance division regarding pigs, chickens, turtles, and the altar, and requested the Court to reconsider and re-measure the land area, without requesting a re-valuation.
* Ms. Tran Thi S also had an application requesting the division of common property between her and Mr. Tran The T1. According to Ms. S’s presentation: During the time living with Mr. T1, she and Mr. T1 created common assets including 01 level 4 house on an area of 36m2 located on a total land area of 8,500m2 (now remaining 6,403m2), 01 Chinese motorcycle, 02 water pumps, 450kg of curry, 05 pigs, 70 chickens, 22 rabbits, 01 fish pond, 01 tea cabinet – she requested the protection of her legitimate interests. In the self-declaration dated April 15, 2009, Ms. S requested the Court to resolve the division of common property between her and Mr. T1, and simultaneously divide Mr. T1’s inheritance to her, Ms. P1, Mr. P2, and Mr. P3 for the remaining land area, including the land area that Mr. P3 and Mr. P2 had sold to Mr. L and Mr. C.
* The defendants, Mr. Tran Trong P2 and Mr. Tran Trong P3, presented:
The above assets were created by Mr. T1 and the two brothers; Ms. S contributed no effort, so they did not agree to divide them with Ms. S. Regarding the request for inheritance division for Ms. P1, Mr. P2 and Mr. P3 requested a DNA test to determine the line of inheritance according to the law.
* Persons with related rights and obligations presented:
– Ms. To Thi T2 presented: She and Mr. T1 married in 1969 (had a registration certificate but it was lost). She and Mr. T1 had 02 common children, Mr. P2 and Mr. P3. In 1982, she left for Vung Tau and lived with Mr. Tran Sinh D, having 03 common children. In 1985, Mr. T1 and Ms. S lived together until 2003 when Mr. T1 died; they also had some common assets. If she were to receive a share of Mr. T1’s estate, her portion should be shared with Mr. P2 and Mr. P3.
– Mr. Chu Dinh M presented: When Mr. T1 was alive, he borrowed 8 million VND from him. Mr. P2 and Mr. P3 have fully repaid him; now he has no further request and requests the Court to resolve according to regulations.
– Ms. Lam Thi H presented: In 2002, Ms. S borrowed 17 million VND from her to repair the house and for Mr. P3’s wedding. Later, Ms. S repaid 8 million VND; currently, Ms. S still owes 9 million VND. She requested the Court to compel Ms. S to repay the 9 million VND.
The person with related rights and obligations, Mr. Le Van L, stated: In 1999, Mr. P2 and Mr. P3 transferred to him 01 plot of land 5m wide and 36m long with an area of 180m2; he has paid in full and received the land for use. Now he requests to continue using it.
In First-instance Civil Judgment No. 04/2009/DSST dated October 29, 2009, the People’s Court of Kon Tum Province ruled:
Pursuant to Clause 5, Article 25 of the Civil Procedure Code. Accept the lawsuit “Inheritance Division” of Ms. Tran Thi Trong P1 and the application “Common property division and inheritance division” of Ms. Tran Thi S dated October 08, 2004, supplemented on April 15, 2009.
Pursuant to Articles 634, 636, 637, 640, 678, 679, 686; Clause 2, Article 688, Article 738, Article 739, Article 743, and Article 238 of the 1995 Civil Code; Point b, Clause 1, Article 127 of the Land Law. Rule:
Ms. Tran Thi S is divided a plot of land with an area of 3,201.5m2 valued at 155,500,000 VND at 506/25 P, Group 1, D Ward, K City (excluding the water ditch area) with the following boundaries:
East borders P Alley, 37.66m wide.
West borders rubber plot, 37.66m wide.
South borders Mr. K’s land, 85m long.
North borders Ms. S’s land, 85m long.
And 01 plot of land with an area of 800.37m2 (excluding water ditch) with boundaries:
East borders P Alley, 9.41m wide.
West borders rubber plot, 9.41m wide.
South borders Ms. S’s land, 85m long.
North borders Mr. P3’s house, 85m long. At No. 506/25 P, K City, valued at 38,875,000 VND.
Ms. S is responsible for paying Ms. Lam Thi H the amount of 9,000,000 VND.
Mr. Tran Trong P3 is divided 01 residential plot at No. 506/25 P, D Ward, K City, area 800.37m2 (excluding water ditch area) valued at 38,875,000 VND with boundaries:
East borders P Alley, 9.41m wide.
West borders rubber plot, 9.41m wide.
South borders Ms. S’s land, 85m long.
North borders Ms. P1’s land, 85m long.
Mr. P3 is granted ownership of a house consisting of 01 main house, 01 auxiliary house with a total area of 54.64m2 valued at 9,027,022 VND, 01 Chinese motorcycle valued at 5 million VND, 02 water pumps valued at 800,000 VND, and 450kg of curry valued at 5 million VND. Total 19,827,022 VND.
Mr. P3 must pay Ms. S 8,828,628 VND.
* Ms. Tran Thi Trong P1 is divided a plot of land with an area of 800.37m2 (excluding water ditch area) valued at 38,875,000 VND at 506/25 P, D Ward, K City with boundaries:
East borders P Alley, 9.41m wide.
West borders rubber plot, 9.41m wide.
South borders Mr. P3’s land and house, 85m long.
North borders Mr. P2’s land, 85m long.
Ms. P1 must pay Mr. P3 4,959,372 VND; pay Ms. S 1,875,000 VND.
* Mr. Tran Trong P2 is divided 01 plot of land with an area of 800.37m2 (excluding water ditch area) valued at 38,875,000 VND at 506/25 P, Group 1, D Ward, K City, with boundaries:
East borders P Alley, 9.41m wide.
West borders rubber plot, 9.41m wide.
South borders Ms. P1’s land, 85m long.
North borders Mr. T’s land, 85m long.
Mr. P2 is responsible for paying Ms. S 1,875,000 VND and paying Mr. P3 4,959,372 VND.
Ms. Tran Thi S, Mr. Tran Trong P2, Mr. Tran Trong P3, and Ms. Tran Thi Trong P1 have the right to visit the competent authority to perform procedures for land use right certificate application according to regulations.
Additionally, the first-instance judgment decided on court fees and announced the right to appeal.
On November 11, 2009, the defendants, Mr. Tran Trong P2 and Mr. Tran Trong P3, appealed, requesting the dismissal of the plaintiff’s lawsuit.
On November 12, 2009, the person with related rights and obligations, Ms. To Thi T2, appealed, requesting the dismissal of the plaintiff’s lawsuit.
Based on the documents and evidence in the file examined at the appellate trial, the statements of the parties, and the results of the arguments at the trial.
COURT’S ASSESSMENT:
[1] Ms. To Thi T2 lived with Mr. Tran The T1 from 1969 and had 2 common children, Tran Trong P2 and Tran Trong P3. In 1982, Ms. T2 went to Ba Ria – Vung Tau to live with Mr. Tran Sinh D from then until now and has had 3 common children.
[2] Since 1985, Mr. Tran The T1 and Ms. Tran Thi S lived together and had a common child, Tran Thi Trong P1, until Mr. T1 died in 2003.
[3] Considering that Ms. To Thi T2 lived with Mr. T1 without marriage registration, and in 1982 Ms. T2 left for Vung Tau to marry Mr. D and has had common children from then until now, the de facto marriage relationship between Mr. T1 and Ms. T2 terminated long ago. Therefore, they no longer have obligations to each other, and Ms. T2 is not entitled to inherit the estate left by Mr. T1 as the first-instance judgment ruled correctly.
[4] Considering that after Ms. T2 no longer lived with Mr. T1, in 1985 Mr. T1 lived with Ms. S until Mr. T1 died, having 1 common child and legal common assets, the first-instance judgment recognized it as a de facto marriage, thus dividing common property and granting inheritance of Mr. T1’s estate is grounded.
[5] Regarding the request of Mr. P2 and Mr. P3 for a DNA test to determine if Ms. P1 is Mr. T1’s daughter: this issue was requested for expert appraisal, but currently, our country’s science has not yet been able to extract DNA from Mr. T1’s remains, so it cannot be performed. However, previously Mr. Tran Trong P2, Mr. Tran Trong P3, and Ms. To Thi T2 also gave statements admitting Ms. Tran Thi Trong P1 is the biological daughter of Mr. Tran The T1 (Records 52, 53, 56), which is consistent with the statements of Ms. P1 and Ms. S and other evidence such as birth certificates and witness statements. Therefore, the first-instance judgment’s acceptance of Ms. P1’s inheritance right to Mr. T1’s estate is grounded.
[6] Considering that in 1987 Mr. Tran The T1 was granted a garden plot in Q Ward (now D Ward), K City with an area of 8,500m2 by the People’s Committee of K Town, currently on the land there is 01 level 4 house built by Mr. T1 and Ms. S and some other common assets.
[7] Considering that during the use of the aforementioned land, based on the statements of the parties as well as through verification, it was found that Mr. T1 and his children had sold parts of it to several people, and simultaneously there is an irrigation canal project passing through the land, so the land area is no longer as it was. According to the on-site appraisal record on May 12, 2005, with an attached diagram, the land area currently managed by Mr. T1’s family is 5,610m2 and 540m2 sold by Mr. P2 to Mr. L and Mr. C, totaling 6,150m2. From then until the first-instance trial date (October 29, 2009), the first-instance court did not invite the land registry to re-measure to accurately determine how many m2 the actual area of the disputed land currently remains. In 2009, Ms. S also applied for a land re-measurement, but the first-instance court did not perform it and hastily accepted the statements of Ms. S, Ms. P1, Mr. P3, and Mr. P2 that the land area created by Mr. T1 and Ms. S currently remains at 6,403m2 to divide, which does not ensure accuracy and will easily lead to difficulties and bottlenecks during judgment enforcement. Simultaneously, the first-instance court did not require Mr. P2 to go to the disputed land to measure and determine the location of the 3,000m2 plot that Mr. P2 claimed he bought from Mr. A to see if there is a basis or not. These issues cannot be rectified by the appellate court; therefore, it is necessary to annul the first-instance judgment to return the case file to the first-instance court for re-resolution.
[8] The parties do not have to bear appellate civil court fees.
For the above reasons,
Pursuant to Clause 1, Article 277 of the Civil Procedure Code.
DECISION:
– Annul First-instance Civil Judgment No. 04/2009/DSST dated October 29, 2009, of the People’s Court of Kon Tum Province.
– Transfer the case file to the People’s Court of Kon Tum Province for re-resolution according to general procedures.
– Refund the appellate court fee advance to the parties.
The appellate judgment takes legal effect from the date of pronouncement.
CONTENT OF THE PRECEDENT
“[3] Considering that Ms. To Thi T2 lived with Mr. T1 without marriage registration, and in 1982 Ms. T2 left for Vung Tau to marry Mr. D and has had common children from then until now, the de facto marriage relationship between Mr. T1 and Ms. T2 terminated long ago. Therefore, they no longer have obligations to each other, and Ms. T2 is not entitled to inherit the estate left by Mr. T1 as the first-instance judgment ruled correctly.
[4] Considering that after Ms. T2 no longer lived with Mr. T1, in 1985 Mr. T1 lived with Ms. S until Mr. T1 died, having 1 common child and legal common assets, the first-instance judgment recognized it as a de facto marriage, thus dividing common property and granting inheritance of Mr. T1’s estate is grounded.”
