Many people wonder whether prenuptial agreements are valid in Vietnam and whether they should use it. Is a prenuptial agreement between foreigners and Vietnamese valid? Let’s find out in this article with LSX Law firm.
Legal Ground
- Civil Code 2015
- Law on Marriage and Family 2014
What is a prenuptial agreement?
The prenuptial agreement is a legally enforceable contract in western countries. Specifically, before marriage, Couples will have agreements on legal issues such as custody of children, division of property if divorce happens. It shows transparency in property between husband and wife, making it easy to deal with when conflicts arise.
In other words, in some countries, a prenuptial agreement is an ordinary civil contract for the purpose of binding obligations and benefits arising from marriage (Donald Trump also signed a marriage contract in order to protect assets after 2 divorces).
Now that we know what a prenuptial agreement is, let’s move on to the question: Is a prenuptial agreement between foreigners and Vietnamese valid?
Does prenuptial agreement between foreigners and Vietnamese valid according to Vietnamese Law?
It is very interesting that Vietnamese law does not have a provision on “prenuptial agreements” in criminal law. However, Vietnamese law has very specific provisions on marriage conditions. In Article 8 of the Law on Marriage and Family 2014 as follows:
Article 5. Protection of the marriage and family regime
2. The following acts are prohibited:
a) Fake marriage;
b) Child marriage, forced marriage, cheating on marriage, obstructing marriage;
c) A married person who marries or lives together as husband and wife with another person, or is unmarried but marries or cohabits as husband and wife with a married person;
d) Marrying or living together as husband and wife between people of the same bloodline; among people with surnames within three generations; between adoptive parents and adopted children; between a person who used to be a father, an adoptive mother with an adopted child, a father-in-law with a daughter-in-law, a mother-in-law with a son-in-law, a stepfather with a stepchild of a wife, a stepmother with a stepchild of a husband;
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d) Claiming wealth in marriage;
e) Forcing divorce, cheating divorce, obstructing divorce;
g) Giving birth by assisted reproductive technology for commercial purposes, surrogacy for commercial purposes, fetal sex selection, asexual reproduction;
h) Domestic violence;
i) Taking advantage of the exercise of marriage and family rights for human trafficking, labor exploitation, sexual abuse, or other acts for the purpose of self-seeking.
There can be a prenuptial agreement between foreigners and Vietnamese.
If prenuptial agreements between foreigners and Vietnamese are legal in Vietnam, it is very easy to marry without really having feelings, marriage at this time is often a fraud, coercion, and exploitation.
Marriage must arise from feelings and if there is a prenuptial contract, according to Asian culture it will be a tendency of calculation and materialism – But sometimes clarity is necessary. Therefore, Vietnamese law also creates a “Prenuptial agreement” to be applied in a humane way in all cases when there is a dispute.
The Law in some ways, makes it so that prenuptial agreement between foreigners and Vietnamese plausible.
The principles of property division are specified in Articles 33 and 43 (On common property and separate property) and Articles 38 and 59 (On property division principles) of the Law on Marriage and Family 2014, specifically as follows: following:
Article 38. Division of common property during the marriage period
1. During the marriage period, husband and wife have the right to agree on the division of part or the whole of the common property, except for the case specified in Article 42 of this Law; If they cannot reach an agreement, they have the right to request the Court to settle.
2. Agreement on the division of common property must be in writing. This document is notarized at the request of the husband and wife or as prescribed by law.
3. At the request of husband and wife, the court shall settle the division of common property of husband and wife according to the provisions of Article 59 of this Law.
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Article 59. Principles of property settlement of husband and wife upon divorce
2. Common property of husband and wife shall be divided in half taking into account the following factors:
- Depends on the circumstance of the family and of the husband and wife;
b) Contribution of husband and wife to the creation, maintenance, and development of the common property. Labor of husband and wife in the family is considered as income labor;
c) Protect the legitimate interests of each party in production, business, and profession so that the parties have conditions to continue working to generate income;
d) The fault of each party in violating the rights and obligations of husband and wife.
It can be seen that not every divorce requires the property to be divided, but when dividing the property, it must be based on the 4 principles in Clause 2, Article 59 of the Law on Marriage and Family. However, in order to have a basis, there must be some proof. Very few people keep receipts, written records of contributions during theirs marriage. This is very sensitive in Asian culture and is a weak point when it comes to property disputes.
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When divorced, parents will separate emotionally and property but always have obligations towards their children. This is a humane regulation and shows the responsibility of parents for their “kin”. If there is a marriage contract, whether the two parties have entered into a contract to deny the responsibility to raise, educate, and care for is also something to think about.
Of course, this will be a bit annoying and disheartening. However, it may be necessary!
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