- Application of practices in divorce cases
Customs in divorce cases are obvious rules of conduct to which define rights and obligations of the spouses in the marriage and family relationship, remaining consistent for a long time, and recognised and applied generally in a region or a community of Vietnam[3]. Article 7 of the Law on Marriage and Family 2014 stipulates that for cases not prescribed by law or not agreed by spouses, that fine practices which embody the identity of each nationality, are not contrary to the principles and do not involve prohibited acts prescribed in this Law. Thus, for the legal issues in the divorce case not prescribed by law, the Court has the right to apply fine practices of marriage and family in order to resolve the divorce case. In addition, the spouses also have the right to agree on the application of practices to resolve their divorce case and the Court will consider respecting such agreement[4]. When a divorce case applies practices, the order of settlement will be as follows:
- The State encourages spouses to self-mediate on grassroots conciliation and the participation of prestigious people in the community and religious dignitaries; and
- If the conciliation fails or the divorce case applying any practice falls outside the scope of grassroots conciliation, a Court shall settle such cases like ordinary divorce cases[6].
However, it should be noted that the current laws only allow the application of good national practices regarding marriage and family while backward practices should be eliminated through mobilisation or banned from application. Accordingly, backward marriage and family practice means a practice which contravenes the fundamental principles of the marriage and family regime or involve prohibited acts as prescribed in the Law on Marriage and Family 2014[8]. The Annex on the list of backward marriage and family practices which should be eliminated through mobilisation or banned from application has been issued by the Government together with Decree No. 126/2014/ND-CP. Some examples of these practices are underage marriage, patrilineality, polygamy, etc.
2. Application of analogy of laws in divorce cases
Applying law provisions to the same matter in a divorce case is when the Court is resolving a matter in a case but there is no law provision to directly govern such matters and there is no practice or any agreement between the spouses as a basis for settlement. In this case, the Court has the right to use a law provisions governing a similar matter to solve that matter. Normally, when resolving a divorce case, the Court’s order of priority will be as follows: the first is the lawful agreement of the spouses; the second is relevant law provisions; the third is recognised customs; the fourth is application of law provisions in the same matter; and the fifth is civil law, principles precedents, and justice[10]. Therefore, application of law provisions in the same matters in a divorce case is only completed when the Court really cannot find any provision in the agreement of the spouses, legal or customary provisions governing such matter.
When applying law provisions
applicable to the same matter, the Court shall determine clearly the legal
nature of the civil cases, must determine clearly that there is
no legal provisions in legal system governing such relationship and determining legal provisions governing similar civil relationship[12].
[1] Điều 3.4 Luật Hôn nhân và Gia đình 2014.
[3] Article 3.4 of Law on Marriage and Family 2014.
[4] Article 3.2 of the Decree No. 126/2014/ND-CP.
[6] Article 4 of the Decree No. 126/2014/ND-CP.
[8] Article 5.2 of the Decree No. 126/2014/ND-CP.
[10] Article 45 of the Civil Proceedings Code 2015.
[12] Article 45.2 of the Civil Proceedings Code 2015.
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