Question 1: In a divorce case, what are circumstances in which wife or husband has the right to request the Court to issue a decision on implementing a health or DNA (axit deoxyribonucleic) test of the other? Is the period of cohabitation calculated in the marriage period? Is the separation period deducted from the marriage period? Is the period from the time of filing for divorce until the Court’s decision on divorce taking effect deducted from the marriage period?

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According to Article 3.13 of the Law on Marriage and Family 2014, marriage period means the duration of existence of the spousal relationship, counting from the date of marriage registration to the date of marriage termination. Accordingly, a marriage is terminated in any of the following circumstances: (i) from the time of death of a spouse; or (ii) from the date a Court’s divorce judgement or decision takes legal effect. Therefore, the marriage period shall be established from the time of marriage registration to the date of death of a spouse or the date a Court’s divorce judgement or decision taking legally effective and the time between the submission of a divorce petition and a Court’s divorce judgement or decision taking legally effective and the separation period is not deducted from the marriage period.

As analysed above, the marriage period shall be counted from the date of marriage registration. Also, according to Article 14 of the Law on Marriage and Family 2014, for a man and woman who cohabit as spouses, the marriage period shall be established from the time of marriage registration. Therefore, the period of time in which a man and woman cohabiting as spouses before the marriage registration date is not included in the marriage period.

However, because of a turbulent historical and social context in Vietnam before 1987, there were many cases where a man and woman who cohabit as spouses but could not and did not have the condition to register their marriage. For this exception, the Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP provides: “In the case of a spousal relationship established before 03 January 1987 (the effective date of the Law on Marriage and Family 1986) without marriage registration, if one or both spouses request a divorce, the competent Court shall accept the divorce case and apply the divorce provisions of the Law on Marriage and Family 2000 to settle according to general procedures. It should be noted that in case if after the spouses’ relation has been established, they just have to complete the marriage registration, then the spouses’ relation will still be recognised as of the date of establishment (the first date that they cohabit as spouses), rather than being recognised as of the date of marriage registration.

Therefore, from the above provisions, the Law on Marriage and Family 2014 does not recognise period of a man and woman who cohabit as spouses before the marriage registration is included in the marriage period. However, in cases where the marriage relation was established before 03 January 1987, the law still recognises the period of a man and woman who cohabit as spouses in the marriage period from the time of cohabiting, not from the time of marriage registration like in other common cases.

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