Precedent No. 53/2022/AL was adopted by the Council of Justices of the Supreme People’s Court on September 7, 2022, and promulgated under Decision No. 323/QD-CA dated October 14, 2022, by the Chief Justice of the Supreme People’s Court.
1. What is a Precedent?
Precedents are legal arguments and rulings in legally effective judgments and decisions of the Court regarding a specific case, selected by the Council of Justices 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 the value of 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 expressing equity regarding issues for which there are no specific legal provisions;
– It is exemplary;
– It has guiding value for the uniform application of law in adjudication.
2. Precedent No. 53/2022/AL on annulment of illegal marriage
2.1. Source of the precedent
Cassation Decision No. 04/2021/HNGD-GDT dated July 7, 2021, of the Council of Justices of the Supreme People’s Court regarding the civil matter “Request for annulment of illegal marriage“; the requester is Ms. Nguyen Thi S, and there are 03 persons with related rights and obligations.
Location of the precedent content:
Paragraphs 2, 3, 4, 8, 9, 10, and 11 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Case situation:
A man and a woman lived together as husband and wife before January 3, 1987 (the date the Law on Marriage and Family 1986 took effect), without marriage registration, held a wedding ceremony, and cohabited in Vietnam for a period of time. Subsequently, both parties went abroad to live and conflicts arose. Before a divorce was settled, one party registered marriage with another person at a competent Vietnamese state agency.
– Legal solution:
In this case, the Court must determine the first marital relationship as a de facto marriage. When the de facto marriage relationship has not ended and one party registers marriage with another person at a competent Vietnamese state agency, such marriage is illegal. The Court accepts the request for annulment of the illegal marriage.
Legal provisions related to the precedent:
– Point c, Clause 2, Article 5; Point a, Clause 2, Article 10; Clause 1, Article 11; Clause 1, Article 122 of the Law on Marriage and Family of Vietnam 2014;
– Clause 1, Article 29 of the Civil Procedure Code of Vietnam 2015;
– Point a, Clause 3 of Resolution No. 35/2000/NQ-QH10 dated June 9, 2000, of the National Assembly on the implementation of the Law on Marriage and Family 2000;
– Point d, Section 2 of Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3, 2001, guiding the implementation of Resolution No. 35/2000/NQ-QH10 dated June 9, 2000, of the National Assembly on the implementation of the Law on Marriage and Family 2000;
– Point b, Clause 4, Article 2 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of several provisions of the Law on Marriage and Family 2014.
Keywords of the precedent:
“De facto marriage”; “Annulment of illegal marriage”.
CASE CONTENT:
In the Petition for Annulment of Illegal Marriage dated June 28, 2017, and testimonies during the proceedings, Ms. Nguyen Thi S and her authorized representative, Ms. Luong Thi T, presented:
Ms. S and Mr. Pham Ba H lived together, held a wedding according to local customs, and registered their marriage at the People’s Committee of P Commune (now P Ward), U City, Quang Ninh Province on November 23, 1980. In April 1981, the couple went to Hong Kong and later immigrated to Canada. By 2008, Ms. S and Mr. H returned to Vietnam to live at house No. 24, Group 14, Area 03, T Ward, U City, Quang Ninh Province (Household Registration Book No. 500296496 dated November 3, 2014; head of household: Pham Ba H; relationship with head of household: wife Nguyen Thi S). During their cohabitation, they had 03 children: Mr. Pham Hong K (born 1981), Ms. Pham Thi Thu H1 (born 1984), and Ms. Pham Thi Thu H2 (born 1991). Currently, all of Ms. S and Mr. H’s children are residing in Canada.
Since 2011, when Mr. H had an extramarital affair with Ms. Nguyen Thi L, conflicts and discord frequently occurred between Ms. S and Mr. H. Ms. S was beaten and kicked out of the house by Mr. H, so she went to Canada to visit her children for relief. A few months later, when Ms. S returned, Mr. H had already brought Ms. L and their child to live in the house of Ms. S and Mr. H, and prevented Ms. S from entering, even though she had reported to local authorities for intervention. Now, Ms. S has learned that Mr. H and Ms. L registered their marriage according to Marriage Certificate No. 09 dated April 17, 2017, of the People’s Committee of M City, Quang Ninh Province. Therefore, Ms. S requested the People’s Court of Quang Ninh Province to annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L.
The authorized representative of the People’s Committee of M City, Quang Ninh Province presented:
The People’s Committee of M City affirmed that the jurisdiction, order, and procedures for marriage registration and the issuance of the Marriage Certificate for Ms. Nguyen Thi L and Mr. Pham Ba H were ensured in accordance with legal regulations. Now that Ms. S has filed a lawsuit requesting the annulment of the marriage between Ms. L and Mr. H as illegal; if there are grounds, it is requested that the People’s Court of Quang Ninh Province resolve the aforementioned civil matter in accordance with the law.
In the First-instance Civil Resolution Decision No. 01/2018/QDDS-ST dated February 2, 2018, the People’s Court of Quang Ninh Province decided:
– To accept Ms. Nguyen Thi S’s request for “Annulment of illegal marriage“.
– To annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L according to Marriage Certificate No. 09 registered on April 17, 2017, by the People’s Committee of M City, Quang Ninh Province. To compel Mr. H and Ms. L to terminate their relationship as husband and wife.
– To assign the common child of Mr. Pham Ba H and Ms. Nguyen Thi L, Pham Thanh D (born December 12, 2015), to Ms. Nguyen Thi L for direct care, nurturing, and education until the child reaches 18 years of age. Mr. Pham Ba H does not have to pay child support. Mr. H has the right and obligation to visit the child without obstruction.
Additionally, the first-instance court also decided on fees and the parties’ right to appeal.
On February 23, 2018, Ms. Nguyen Thi L filed an appeal against the aforementioned Decision.
At the appellate meeting, Mr. Pham Ba H presented: In 1980, he knew Ms. Nguyen Thi S but there was no wedding ceremony or cohabitation for a single day while in Vietnam. In 1981, when they went to Hong Kong, he and Ms. S met again and became close, living together. Although they had children, they did not register their marriage and had independent finances and assets. Therefore, the first-instance court’s reliance on Resolution No. 35/2000/NQ-QH10 dated June 9, 2000, of the National Assembly to determine a de facto marriage relationship between him and Ms. S was groundless.
The marital relationship between him and Ms. Nguyen Thi L is legal because both parties registered their marriage. Before performing the registration procedure, the competent authority conducted verification in many places, including verification with the Vietnamese Consulate in Canada regarding his status of not having registered marriage with anyone and not being in a marital relationship with anyone.
At the appellate meeting, the authorized representative of Ms. Nguyen Thi L, Mr. Dang Thanh V, presented: Requested the Court to dismiss Ms. S’s request for annulment of the legal marriage between Mr. H and Ms. L; Mr. H and Ms. S lived together in Hong Kong but did not register their marriage. In 2008, Mr. H returned to Vietnam first; Mr. H and Ms. S did not live together as husband and wife in Vietnam but only jointly organized weddings for their children.
In the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, the High People’s Court in Hanoi decided:
To accept Ms. Nguyen Thi L’s appeal and amend the First-instance Civil Resolution Decision No. 01/2018/QDDS-ST dated February 2, 2018, of the People’s Court of Quang Ninh Province regarding the non-acceptance of Ms. Nguyen Thi S’s request for “Annulment of illegal marriage”. To recognize the relationship between Mr. Pham Ba H and Ms. Nguyen Thi L as a legal marital relationship according to marriage certificate No. 09 registered on April 17, 2017, by the People’s Committee of M City, Quang Ninh Province.
Additionally, the appellate court also decided on fees and judicial trust costs.
On February 6, 2020, Ms. Nguyen Thi S filed a petition for cassation review of the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, of the High People’s Court in Hanoi, requesting to annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L.
On April 27, 2021, the Chief Justice of the Supreme People’s Court issued Cassation Protest Decision No. 05/2021/KN-HNGD against the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, of the High People’s Court in Hanoi regarding the “Request for annulment of illegal marriage” between the requester Ms. Nguyen Thi S; and persons with related rights and obligations Mr. Pham Ba H, Ms. Nguyen Thi L, and the People’s Committee of M City, Quang Ninh Province. It was proposed that the Council of Justices of the Supreme People’s Court conduct a cassation trial, vacate the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, and uphold the First-instance Civil Resolution Decision No. 01/2018/QDDS-ST dated February 2, 2018. Execution of the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS was temporarily suspended until a cassation decision was made.
At the cassation meeting, the representative of the Supreme People’s Procuracy proposed that the Council of Justices of the Supreme People’s Court accept the Cassation Protest Decision No. 05/2021/KN-HNGD dated April 27, 2021, of the Chief Justice of the Supreme People’s Court.
COURT’S ASSESSMENT
[1] In Official Letter No. 424/UBND dated September 7, 2017, of the People’s Committee of P Ward, U City, Quang Ninh Province responding to the People’s Court of Quang Ninh Province, it was stated: “Currently, at the People’s Committee of P Ward, the original marriage registration book only retains records from 1989 to the present; records from 1988 and earlier could not be preserved. The marriage registration numbers kept from 1989 to the present do not include any case of marriage registration for Mr. Pham Ba H (born 1959) and Ms. Nguyen Thi S (born 1960)”. During the resolution of the case, Ms. S could not provide a Marriage Registration Certificate between her and Mr. H. Therefore, there is no ground to determine that Ms. S and Mr. H registered their marriage at the People’s Committee of P Commune in 1980.
[2] Based on the Verification Minutes dated November 13, 2014, of the People’s Committee of P Ward and the testimonies of witnesses, including the testimony of Mr. Bui Ngoc C (an elderly neighbor of Ms. S’s parents) and Mr. Nguyen Van N (Head of Area T, P Ward), both testified: In 1980, Mr. Pham Ba H and Ms. Nguyen Thi S organized a wedding and lived together; afterward, they both escaped the country.
[3] In the certified copy of the birth certificate of Mr. Pham Hong K, born August 7, 1981, it shows the father’s name as Pham Ba H and the mother’s name as Nguyen Thi S. Thus, there is a basis to determine that Ms. S and Mr. H had a period of cohabitation in Vietnam and Ms. S went to Hong Kong after becoming pregnant with Mr. Pham Hong K.
[4] Furthermore, the copy of Household Registration Book No. 500296496 issued by M City Police on November 3, 2014, and the Land Use Rights Lease Contract dated April 13, 2015, at Notary Office No. 02 of Quang Ninh Province also show that Mr. Pham Ba H has a wife named Nguyen Thi S.
[5] According to Point a, Clause 3 of Resolution No. 35/2000/NQ-QH10 dated June 9, 2000, of the National Assembly: “a. In cases where the husband and wife relationship was established before January 3, 1987, the date the Law on Marriage and Family 1986 took effect, without marriage registration, they are encouraged to register their marriage; in case of a request for divorce, it shall be accepted and resolved by the Court according to the divorce provisions of the Law on Marriage and Family 2000;..”
[6] Point d, Section 2 of Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3, 2001, stipulates: “A man and a woman are considered to be living together as husband and wife if they meet the conditions for marriage under the Law on Marriage and Family 2000 and fall into one of the following cases: Having organized a wedding ceremony when coming to live together; Their living together was accepted by the family (one or both sides); Their living together was witnessed by others or organizations; They truly lived together, cared for and helped each other, and built a family together.”
[7] Point b, Clause 4, Article 2 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP stipulates that persons considered to be currently having a spouse include “Persons who established a husband and wife relationship with another person before January 3, 1987, without marriage registration and have not divorced or there is no event of their spouse’s death or their spouse being declared dead”.
[8] Therefore, there is a basis to determine that the relationship between Ms. S and Mr. H, living together as husband and wife before 1987, is a de facto marriage; although they did not register the marriage, it is still recognized by law as a husband and wife relationship.
[9] Mr. H’s registration of marriage with Ms. Nguyen Thi L according to Marriage Certificate No. 09 dated April 17, 2017, at the People’s Committee of M City, Quang Ninh Province while a marital relationship with Ms. Nguyen Thi S still exists is a violation of the monogamy regime and the provisions at Point c, Clause 2, Article 5 of the Law on Marriage and Family 2014. The People’s Committee of M City, Quang Ninh Province’s performance of marriage registration for Mr. H and Ms. L was not in accordance with the law.
[10] The first-instance court’s acceptance of Ms. S’s request, declaration of annulment of the illegal marriage between Mr. H and Ms. L, and resolution of the consequences of the illegal marriage are grounded.
[11] The appellate court’s assessment: “According to the Law on Marriage and Family of Vietnam in 1987, 2000, and 2013, it only regulates and is effective in terms of space, time, and location within the territory of Vietnam. Meanwhile, the illegal cohabitation of Mr. H and Ms. S was mainly abroad and occurred before and after 1987, 2000, and before 2013 when the Law on Marriage and Family of Vietnam was enacted and amended…” thereby not recognizing the relationship between Mr. H and Ms. S as husband and wife and recognizing the marriage between Mr. H and Ms. L as a legal marital relationship was not in accordance with the law.
For these reasons;
DECISION:
Based on Point a, Clause 2, Article 337; Clause 1, Article 342; Clause 2, Article 343; and Article 344 of the Civil Procedure Code 2015;
1. To accept the Cassation Protest Decision No. 05/2021/KN-HNGD dated April 27, 2021, of the Chief Justice of the Supreme People’s Court against the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, of the High People’s Court in Hanoi.
2. To vacate the Appellate Civil Resolution Decision No. 12/2019/QDPT-DS dated September 18, 2019, of the High People’s Court in Hanoi.
3. To uphold the First-instance Civil Resolution Decision No. 01/2018/QDDS-ST dated February 2, 2018, of the People’s Court of Quang Ninh Province.
PRECEDENT CONTENT
“[2] Based on the Verification Minutes dated November 13, 2014, of the People’s Committee of P Ward and the testimonies of witnesses, including the testimony of Mr. Bui Ngoc C (an elderly neighbor of Ms. S’s parents) and Mr. Nguyen Van N (Head of Area T, P Ward), both testified: In 1980, Mr. Pham Ba H and Ms. Nguyen Thi S organized a wedding and lived together; afterward, they both escaped the country.
[3] In the certified copy of the birth certificate of Mr. Pham Hong K, born August 7, 1981, it shows the father’s name as Pham Ba H and the mother’s name as Nguyen Thi S. Thus, there is a basis to determine that Ms. S and Mr. H had a period of cohabitation in Vietnam and Ms. S went to Hong Kong after becoming pregnant with Mr. Pham Hong K.
[4] Furthermore, the copy of Household Registration Book No. 500296496 issued by M City Police on November 3, 2014, and the Land Use Rights Lease Contract dated April 13, 2015, at Notary Office No. 02 of Quang Ninh Province also show that Mr. Pham Ba H has a wife named Nguyen Thi S.
…
[8] Therefore, there is a basis to determine that the relationship between Ms. S and Mr. H, living together as husband and wife before 1987, is a de facto marriage; although they did not register the marriage, it is still recognized by law as a husband and wife relationship.
[9] Mr. H’s registration of marriage with Ms. Nguyen Thi L according to Marriage Certificate No. 09 dated April 17, 2017, at the People’s Committee of M City, Quang Ninh Province while a marital relationship with Ms. Nguyen Thi S still exists is a violation of the monogamy regime and the provisions at Point c, Clause 2, Article 5 of the Law on Marriage and Family 2014. The People’s Committee of M City, Quang Ninh Province’s performance of marriage registration for Mr. H and Ms. L was not in accordance with the law.
[10] The first-instance court’s acceptance of Ms. S’s request, declaration of annulment of the illegal marriage between Mr. H and Ms. L, and resolution of the consequences of the illegal marriage are grounded.
[11] The appellate court’s assessment: “According to the Law on Marriage and Family of Vietnam in 1987, 2000, and 2013, it only regulates and is effective in terms of space, time, and location within the territory of Vietnam. Meanwhile, the illegal cohabitation of Mr. H and Ms. S was mainly abroad and occurred before and after 1987, 2000, and before 2013 when the Law on Marriage and Family of Vietnam was enacted and amended…” thereby not recognizing the relationship between Mr. H and Ms. S as husband and wife and recognizing the marriage between Mr. H and Ms. L as a legal marital relationship was not in accordance with the law.”
