PRENUPTIAL AGREEMENT AROUND THE WORLD EXPERIENCES FOR VIET NAM (luận văn thạc sỹ luật)

HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS  - BACHELOR’S THESIS FACULTY OF INTERNATIONAL LAW PRENUPTIAL AGREEMENT AROUND THE WORLD-EXPERIENCES FOR VIET NAM STUDENT: PHAM THI KIEU PHUONG STUDENT CODE: 0955020318 CLASS: ADVANCE CLASS 34th COURSE SUPERVISOR: Dr DO THI MAI HANH HO CHI MINH CITY - 2013 HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS  - BACHELOR’S THESIS FORMAL EDUCATION TRAINING COURSE 34 (2009 – 2013) PRENUPTIAL AGREEMENT AROUND THE WORLD-EXPERIENCES FOR VIET NAM STUDENT: PHAM THI KIEU PHUONG STUDENT CODE: 0955020318 CLASS: ADVANCE CLASS 34th COURSE SUPERVISOR: Dr DO THI MAI HANH HO CHI MINH CITY - 2013 COMMITMENT I hereby commit that the thesis “Prenuptial agreement around the world – experiences for Viet Nam” is my work of research under Lecturer Dr Do Thi Mai Hanh’s supervision I guarantee what I wrote in my thesis are originated in the process of researching materials and practice The data used in the thesis have been studied carefully and quoted from liable sources The quoted text is clearly noted and based on verification Sources of information referred in this thesis are cited fully according to regulations of the faculty of international law, Ho Chi Minh University of law I am responsible for what is illustrated in the thesis Ho Chi Minh city, July 16th , 2013 Pham Thi Kieu Phuong Contents INTRODUCTION CHAPTER 1: INTRODUCTION ABOUT PRE-NUPTIAL AGREEMENT 1.1 Overview of Prenuptial Agreements around the world 1.1.1 History of Prenuptial Agreements 1.1.2 Definition of Prenuptial Agreement 10 1.2 Analyzing provisions in statutes of some national legal systems 12 1.2.1 Thailand 12 1.2.1.1 Conditions of prenuptial agreement 12 1.2.1.2 Condition of two parties in Prenuptial Agreement 15 1.2.1.3 Modification and Revocation 15 1.2.1.4 Time to enter into prenuptial agreement 15 1.2.1.5 Effect of Prenuptial agreement 16 1.2.2 France 16 1.2.2.1 Condition of Prenuptial agreement 16 1.2.2.2 Condition of two parties of Prenuptial Agreement 18 1.2.2.3 Modification and Revocation 19 1.2.2.4 Time to enter into prenuptial agreement 20 1.2.2.5 Effect of prenuptial agreement 20 1.2.3 United State 20 1.2.3.1 Condition of prenuptial agreement 20 1.2.3.2 Condition of two parties of Prenuptial Agreement 22 1.2.3.3 Modification and Revocation 22 1.2.3.4 Time to enter into prenuptial agreement 23 1.2.3.5 Effect of Prenuptial agreement 23 1.2.4 China 23 1.2.4.1 Conditions of prenuptial agreement 23 1.2.4.2 Condition of two parties in Prenuptial Agreement 24 1.2.4.3 Modification and Revocation 24 1.2.4.4 Time to enter into prenuptial agreement 24 1.2.4.5 Effect of Prenuptial agreement 25 1.3 Common characteristic of Prenuptial Agreement 25 1.3.1 Enforcement of Prenuptial Agreement 25 1.3.2 Formalities of Prenuptial Agreement 25 1.3.3 Contents of Prenuptial Agreement 25 1.3.4 Two parties of Prenuptial Agreement 26 1.3.5 Time to enter into prenuptial agreement 26 1.3.6 Purpose of Prenuptial Agreement 26 1.4 Prenuptial agreement in Vietnam legal system 26 1.4.1 Prenuptial agreement in France‟s colony period 26 1.4.2 Prenuptial agreement in South Vietnam before April 30, 1975 30 1.4.3 Prenuptial agreement in the law of family and marriage from 1945 until nowadays 32 1.4.4 1.5 Reason for non-providing prenuptial agreement 34 Conclusion 35 CHAPTER 2: APPLICABLE OF PRENUPTAL AGREEMENT IN VIET NAM37 2.1 Practices in solving divorce disputes in Viet Nam 37 2.1.1 Disputes in determining spouses‟ community property 37 2.1.2 Disputes in dividing property in kind or value 38 2.1.3 Dispute about carrying out property obligation in during the marriage period 40 2.2 Ability to apply prenuptial agreement in Viet Nam 41 2.2.1 Economy in Viet Nam 41 2.2.2 Traditional culture and Public opinion 42 2.3 The necessary for provisions about prenuptial agreement in the Law on Marriage and Family of Vietnam 47 2.3.1 The outstanding problems of property settlement in divorce 47 2.3.2 The popularity of Marriage with foreigners 49 2.3.3 Current situation of making “prenuptial agreement” in Viet Nam 51 2.3.4 Establishment of gender equality regime in family and marriage 52 2.3.5 Points of view of law researchers and the issue of drafting about law on family and marriage 54 2.4 Proposal for family and marriage law 56 2.4.1 Advantages and disadvantages of Prenuptial agreement 57 2.4.2 Improvement for Vietnam legal system 58 2.4.2.1 Agreement-based property institution and legal property institution 61 2.4.2.2 Prenuptial agreement 62 2.5 Conclusion 66 CONCLUSION Error! Bookmark not defined INTRODUCTION The reasons for making the thesis Comparative law is an interesting subject and studying of foreign law is a legal activity which brings many high efficiency and application However, it is often a difficult process, where not only the differences between the various opinions but also the lack of understanding of each other‟s way of legal thinking and legal concepts, may frequently constitute the greatest difficulty.1 Nowadays, countries in the world wish harmonization and unification of law, therefore, studying of foreign law becomes more important In today‟s modern, jurists can no longer limit themselves to studying the laws of their own country Through the research process, it is realized that most of Western countries and some Asia countries have prenuptial agreement institution, such as England, Australia, Austria, Brazil, Canada, China, Finland, Germany, Greece, Ireland, Jamaica, Japan, Luxemburg, Netherlands, New Zealand, Philippines, Portugal, Russia, Spain, Sweden, Switzerland, United state, France, Thailand, China… Prenuptial agreement is a progress institution which allows spouses have freedom right to dispose of their property during marriage period and after divorce, this agreement must be established before marriage This institution brings many certain benefits for legislation field, application and execution of law of many countries in the world The author analyzes provisions about prenuptial agreement of some countries which represent for legal systems in the fond hope that will learn experiences from these countries Beside studying of foreign law, the author also studies about law of Vietnam and there are evidences to prove that prenuptial agreement existed for a long time ago in history of Vietnam legal system, but it was abolished by State Realizing practice problems in Viet Nam and shortcomings of Family and Marriage Law 2000 about spouse‟s property institution, with the intention to figure out reasons for abolishing prenuptial agreement in Viet Nam and restore this Michael bogdan, “comparative law”, kluwer norstedts juridik tano, (2000), pp.10 institution The author, thus decides to make the thesis: “Prenuptial agreement around the world-experiences for Viet Nam” Research situation Prenuptial agreement is an institution which has been developing for thousands of years in many legal systems all over the world Therefore, in other foreign countries, there has been a large number of research works on this matter Here are some remarkable books and articles: - Jesse Russell, Ronald Cohn, “Prenuptial Agreement”, Book on Demand, (2012) and Frederic P Miller, Agnes F Vandome, John McBrewster, “Prenuptial Agreement”, VDM Publishing, 2011 These books are the collection of academic articles in legal journal - Gary N Skoloff, Richard H Singer, Ronald L Brown, “Drafting Prenuptial Agreements”, Aspen Publishers Online, 1995 Prenuptial agreements have exploded over the past 20 years, not only among celebrities, but also for all types of people who desire to protect, manage, or enhance their personal, family, or business assets against foreseen and unforeseen circumstances - Katherine E Stoner Attorney, “Prenuptial Agreements: How to Write a Fair & Lasting Contract”, Nolo (2012) Write a prenuptial agreement and enter your marriage with eyes wide open Marriage is one of the few personal contracts in which your state dictates the term, unless you create your own customized premarital agreement Combining Nolo's legal expertise and plain-English writing, Prenuptial Agreements makes a potentially touchy subject easy to deal with while explaining how to create a valid contract In Viet Nam, prenuptial agreement is a new issue Therefore, the number of research works on prenuptial agreement are relatively few Academic articles and thesis of certain scholars such as: - Nguyen Hong Hai, “Recognition agreement-based property institution in family and marriage law of Viet Nam”, legal journal No.3, (1998) - Master Bui Minh Hong, “Agreement-based property institution in marriage and family from foreign law to Vietnam law”, legal journal No.11 (2009) - Pham Thi Linh Nham, “study about prenuptial agreement and ability to apply prenuptial agreement in Viet Nam”, Thesis, Ha Noi University of law, (2010) The purpose of the thesis First of all, the thesis will give a general understanding of some fundamental academic issues in relation to prenuptial agreement to define the concept, characteristics of prenuptial agreement besides, Introduce about history of prenuptial agreement in the world Secondly, under a comparative view, the thesis will study about prenuptial agreement of national legal systems Thirdly, The author will give analysis about ability of Viet Nam to apply prenuptial agreement and the necessary of prenuptial agreement Finally, the thesis will provide several recommendations for further improvement of current legal provisions in Viet Nam The scope of research In the thesis, the author just concentrates on researching the following points: Firstly, the thesis will provide an overview of prenuptial agreement, include history of prenuptial agreement in the world; concept and characteristics of prenuptial agreement of some national legal system This scope is limited in provisions relate to prenuptial agreement of Thailand, France, United State and China Secondly, the thesis analyzes existence of prenuptial agreement in history of Vietnam legal system This part is limited in regulations of legal documents from France‟s colony period to period from 1945 to 1959 Finally, thesis will clarify necessary of prenuptial agreement in respect with Vietnam legal system through practices and theoretical basis There is a certain limitation in some issues which relate to making detailed or supplementing prenuptial agreement for family and marriage law 2000 Methodology For the thesis‟s purpose being mentioned above, the author will combine various kinds of legal methods as follows: Firstly, synthetic method is an effective method used to collect relevant information from different sources both preliminary and secondary: cases, books, legal documents, online material, etc and to give conclusion Secondly, there is enumerative method to list out essential information for arguments of thesis Thirdly, the thesis has comparative method, under this method, the thesis figures out the similarities and differences about prenuptial agreement between different legal systems Besides, the thesis also uses case study to illustrate the Viet Nam‟s practice and prove for thesis„s arguments Finally, the author applies analytical method throughout research working Significance of the study The thesis “Prenuptial agreement around the world-experiences for Viet Nam” is a systematic and comprehensive research work about prenuptial agreement in many legal systems Theoretical value of knowledge of foreign law about prenuptial agreement is a information source to help readers make reference The thesis also gives readers an overview about practices in Viet Nam and states necessary of prenuptial agreement for Vietnam legal system Generally, the thesis is a personal contribution for legislation field and improvement for current legal draft Structure The thesis is divided into two main chapters, as defined below: Chapter 1: Introduction about prenuptial agreement Chapter 2: ability to apply prenuptial agreement in Viet Nam – experiences for Viet Nam legal system Conclusion 62 be registerred Agreement before marriage is not compulsory, prenuptial agreement is a provision which creates choice rights of people for their condition.142 It need must have a provision below: “the law does not regulate property relationship between husband and wife if the husband and wife have agreement which spouse tare appropriate and not inconsistent with public morals, rules of law and principles the law of Vietnam in the case of married couples without separate agreement shall comply with the provisions of this law.” 2.4.2.2 Prenuptial agreement Prenuptial agreement is also a civil contract, therefore it must be entered into in accordance with the following principles: firstly, Freedom of contract provided that it is consistent with law and social morals Secondly, Voluntariness, equality, goodwill, co-operation, honesty and good faith.143 Consequently, Prenuptial agreement is agreement which bases on voluntary between the parties when they enter into agreement The entry into prenuptial agreement must comply with principles as voluntariness, equality, goodwill, cooperation, honesty and good faith Freedom to enter into the prenuptial agreement, provided that it is not against to law and social ethics The author will apply conditions of prenuptial agreement in foreign law which is presented in Chapter in order to establish conditions of prenuptial agreement in Viet Nam legal system, it is properly selected to suitable with Viet Nam situation: Condition of two parties in prenuptial agreement Persons participating in the transaction have capacity for civil acts.144 The capacity for civil acts of an individual shall be the capability of the individual to establish and 142 Summary report of implementation of the Marriage and Family Law 2000 and report of target, viewpoint and orientation in amendment, supplement of Law on marriage and family 2000, Ministry of Justice, (2013) 143 Ph.D Hoang The Lien, “Scientific comments about Civil Code 2005 (book II)”, National Politics publisher, Ha Noi (2009), Ministry of Justice, legal scientific Institute 144 Article 122 of Civil Code 122 63 exercise civil rights and perform civil obligations through his or her acts.145 About marriage age: the man has reached the age of twenty or over, the woman has reached the age of eighteen or over.146 Therefore, two persons who are about to marry will are the parties of the prenuptial agreement they must have enough age to marry and have capacity to meet the conditions according to the provisions of law Condition of prenuptial agreement Enforcement of prenuptial agreement Prenuptial agreement must comply with conditions which are stipulated in Civil Code and other relevant legal document Prenuptial agreement must be made in writing before the marriage, be signed by both parties who are about to marry and be notarized and authenticated before marriage Prenuptial agreement only arises effect in during marriage.Terms of property status of the spouses must be stated in the prenuptial agreemen Formalities of prenuptial agreement According to Article 401 of civil code 2005 about formalities for civil contracts: “Civil contracts may be entered into orally, in writing or by specific acts, where the law does not provide that such type of contract must be entered into in a specified form Where the law provides that a contract must be made in writing, notarized, certified [and/or] registered or that an application must be made for permission, such provisions must be complied with A contract shall not be invalid for failure to comply with formalities, unless otherwise provided by law” Formalities of prenuptial agreement: Prenuptial agreement must be in writing and must be notarized and authenticate in this case, the commitment between the parties 145 Article 19 of Civil Code 122 Article 3, Decree No 70/2001/ND-CP dated October 03, 2001 of the Government detailing the implementation of the Marriage and Family Law 2000 146 64 will be recorded in writing In this text must write main contents sufficiently and both parties sign to verify in this text, normally prenuptial agreement may be signed in one or more counterparts, each counterpart will be deemed an original Prenuptial agreement in writing will help the parties carry out their rights and obligations easily and the contract is deemed evidence to prove when there are disputes happen Main contents of prenuptial agreement Main content of civil contract is whole clauses which the parties agree when they enter into contract These clauses determine rights and obligatons of the parties and also are compulsory clauses in contract The content of pre-nuptial agreements can vary widely; it really depends on what you would like to safeguard, but typically the main focus of the agreement will be on the partners' assets, provisions for division of property and bank accounts, savings and spousal support and any other financial assets in the event of divorce, death of one of the spouses, or breakup of marriage, that you want to protect.147 Terms which spouses can agree in prenuptial agreement: Composition of private property and community property; Composition of property which is used to guarantee material conditions for essential need of family; Rights and obligations of spouses in the possession, use and disposition of their property; establishment, performance or termination transactions for common need of family and other transactions relate to private, community property; Payment and division of property when terminate property institution The properties which spouse can agree: Available property is community property or separate property before marriage; spouse‟s legal income; Properties which spouse establishes in the during marriage; The yield and revenue from spouse‟s property in during the marriage; The other incomes except properties which are given, inherited 147 “Prenuptial/ Postnuptial Agreements”, http://www.arlingsworthlaw.co.uk/family-law/prenuptial-andpostnuptial-agreements (last visted July 07, 2013) 65 after establishing prenuptial agreement properties which spouse are given, inherited can not agree before marriage because it will not ensure mind of the giver or deceased person The other contents which spouse can agree: a prenuptial agreement will also include details about post-divorce financial arrangements for children (which may be different for children of the new marriage and one partner's children from a previous marriage).148 Provisions about support for spouse‟s parents in during marriage or after divorce Modification and Revocation Spouses can amend, complement and abolish the contents of the prenuptial agreement Amendment, complement and abolishment of prenuptial agreement must comply with provisons of the law and announce to third party who has relevant rights and benefits If spouses violate announcement obligation, Amendment, complement and abolishment of prenuptial agreement will be invalid Amendment, complement and abolishment of prenuptial agreement takes effect from the time spouses notarize, authenticate it Time to enter into and effect of Prenuptial agreement Prenuptial agreement must be established before registering marriage In principle, the contract takes effect from the time of signing However, the effective time of the civil contract is determined by agreement or under the provisions of law it is considered that prenuptial agreement should be valid when spouse registers marriage 148 Katherine E Stoner Attorney, “Prenuptial Agreements: How to Write a Fair & Lasting Contract”, Nolo pulisher (2012), pages 20, 23, 345 66 2.5 Conclusion Close analysis of pratice problems is premise to begin scientific theory Practices in solving divorce disputes in Viet Nam often focus followings: disputes in determining spouses‟ community property; disputes in dividing property in kind or value; disputes about carrying out property obligation in during the marriage period From this practices in Viet Nam, it is necessary to stipulate prenuptial agreement in Viet Nam legal system The author analyzes necessary of prenuptial agreement through arguments: the outstanding problems of property settlement in divorce; the popularity of marriage with foreigners; situation of making “prenuptial agreement” in Viet Nam; establishment of gender equality regime in family and marriage; points of view of law researchers and drafting about law on family and marriage Every argument has persuasive evidence to support for it This is scientific theoretical basis The author analyzes ability to apply prenuptial agreement in Viet Nam about economic and cultural foundation, besides, the author also appreciates advantages and disadvantages of prenuptial agreement the resarching methodology is combination of practices basis and scientific theoretical basis All these things are foundation to propose legal property institution or prenuptial agreement in Viet Nam legal system CONCLUSION Prenuptial agreement existed for long time ago, with history of thousands of year Nowadays, most of Western countries and some of Asia countries have been applying prenuptial agreement in their national legal system This provision brings certain benefits for legislation field and execution of law In Viet Nam, prenuptial agreement is not a new thing Even prenuptial agreement was a provision which was applied for a long time in the past of Viet Nam history, however, this provison was abolished by State Currently, basing on practices in solving divorce disputes in Viet Nam and scientific theoretical basis, it is widely considered that State should stipulate this institution Moreover, Improvement of law is really necessary The thesis focuses to generalize and analyze about history, definition and characteristics of prenuptial agreement the author anlyzes and compares prenuptial agreement in legal system of some representative countries, particularly United State represent common law, France and ThaiLand represent civil law and China represent socialist system Besides, the author gives legal documents to prove that prenuptial agreement existed in history of Viet Nam legal system The thesis bases on information sources to analyze, prove for arguments about practices in solving divorce disputes in Viet Nam The author analyzes underlying foundation for ability to apply prenuptial agreement in Viet Nam, includes economic and cultural foundation In addition, the thesis also prove necessary of prenuptial agreement through persuasive arguments Finally, the thesis gives overview of advantages and disadvantages of prenuptial agreement and the author applies experiences of foreign law as mentioned in Chapter in order to give proposals about prenuptial agreement in Viet Nam legal system Generally, prenuptial agreement is also quite new to legal system of socialist republic of Viet Nam Acknowledge agreement-based property, in company with institution legal property institution requires a long process Viet Nam Lawmakers can not accept prenuptial agreement immediately, it needs an itinerary to carry out this provision However, basing on knowledges and discussions which have been processed throughout this institution, I strongly advocate and emphasis the urgent needs, possibility to achieve and positive contribution of this institution to our society BIBLIOGRAPHY I Legal documents Legal documents of the Socialist Republic of Vietnam Constitution of the Socialist Republic 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Significance of the study The thesis ? ?Prenuptial agreement around the world- experiences for Viet Nam? ?? is a systematic and comprehensive research work about prenuptial agreement in many legal systems Theoretical... (2000), pp.10 institution The author, thus decides to make the thesis: ? ?Prenuptial agreement around the world- experiences for Viet Nam? ?? Research situation Prenuptial agreement is an institution... that the thesis ? ?Prenuptial agreement around the world – experiences for Viet Nam? ?? is my work of research under Lecturer Dr Do Thi Mai Hanh’s supervision I guarantee what I wrote in my thesis