Thông tư 22/2013/TT-BTP về quan hệ hôn nhân và gia đình có yếu tố nước ngoài

THE MINISTRY OF JUSTICE

Circular No. 22/2013/TT-BTP dated December 31, 2013 of the Ministry of Justice detailing and guiding the implementation of some articles of the Decree No. 24/2013/ND-CP dated March 28, 2013 of the Government promulgating the implementation of some Articles of the Law on Marriage and Family on relations of marriage and family with foreign factors

Pursuant to the Governments’ Decree No. 22/2013/ND-CP dated March 13, 2013 defining functions, tasks, powers and organizational structure of the Ministry of Justice;

Pursuant to the Government’s Decree No.24/2013/ND-CP dated March 28, 2013 detailing the implementation of a number of the Law on Marriage and Family on marriage and family relations involving foreign elements;

At the proposal of the Director of the Bureau of Marital status, Nationality and Authentication;

The Minister of Justice promulgates Circular detailing and guiding the implementation a number of articles of the Government’s Decree No. 24/2013/ND-CP dated March 28, 2013, detailing the implementation of a number of articles of the Law on Marriage and Family on marriage and family relations involving foreign elements,

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Circular details clause 3 of Article 7, clause 6 of Article 15 and guide the implementation of a number of articles of the Decree No. 24/2013/ND-CP dated March 28, 2013 detailing the implementation of a number of articles of the Law on Marriage and Family on marriage and family relations involving foreign elements (below collectively referred to as Decree No.24/2013/ND-CP)

2. Provisions of Decree No. 24/2013/ND-CP and this Circular shall be applied to the settlement of marriage, recognition of fathers, mothers or children, recording in the books the marriage, recording in the books the recognition of fathers, mothers and children between Vietnamese citizens who concurrently bear foreign nationality and Vietnamese citizens or foreigners; granting the written Certification of marital status to Vietnamese citizens residing in the country for their registration of marriages with foreigners at competent state agencies in foreign countries; organization and activities of the Center for consultancy, support of marriages and families involving foreign elements (below collectively preferred to as the Center).

3. Provisions of the Decree No.24/2013/ND-CP and this Circular shall not be applied to marriage, recognition of fathers, mothers and children among Vietnamese citizens executing official missions, working, studying, traveling with definite terms in foreign countries or with Vietnamese citizens residing in the country.

Article 2. Document’s valid time limit

The granted duration of less than 06 months of documents as prescribed in point b, point c of clause 1, Article 7 and point b, clause 1 of Article 27 of the Decree No. 24/2013/ND-CP shall be counted from the date of granting such documents until the date of submitting full and valid dossiers.

Article 3. Copies of marital status documents

After the settlement of marriage registration, recognition of fathers, mothers or children, if the involved persons require copies of Marriage Certificates, Decisions on accrediting the recognition of fathers, mothers and children, the Departments of Justice shall base on the Marriage Registers, the Registers for recognition of fathers, mothers and children to issue copies to involved persons; copies shall be signed by Directors of Departments of Justice or officials authorized by Directors and stamped on with official seals of the Departments of Justice.

Article 4. Termination of settling dossiers of marriage registration; recognition of fathers, mothers or children; granting Certificates on marriage status; recording in the registers for marriage, recognition of fathers, mothers and children which have been settled by foreign competent state agencies

The settlement of dossiers of marriage registration, recognition of fathers, mothers and children; issuance of certificates on marriage status; recording in the registers for marriage, recognition of fathers, mothers and children which have been settled by foreign competent state agencies shall be immediately terminated at the written request of one or both marriage parties; of the recognizers or the recognizers to be fathers, mothers or children; of persons who required to be issued with Certificates on marriage status, recording in the registers for the marriage, the recognition of fathers, mothers and children.

Article 5. Responsibilities in notifying about results of settling dossiers of marriage, recognition of fathers, mothers or children; recording in the registers for marriage, recognition of fathers, mothers or children

1. After handing marriage certificates to both marriage partners; recording in the registers the marriage of Vietnamese citizens which have been settled at foreign competent state agencies in foreign countries, the Departments of Justice shall notify in writing to the People’s Committees of communes, wards or towns (below collectively referred to as commune-level People’s Committees), where granted Certificates of marriage status to Vietnamese citizens for reference and making annotations in the book of issuing Certificates of marriage status.

2. In case of refusing to register marriage as prescribed in Article 12 of Decree No. 24/2013/ND-CP, terminating the settlement of marriage registration dossiers as prescribed in Article 4 of this Circular, the Departments of Justice shall notify in writing to the commune-level People’s Committees where Vietnamese citizens are residing for reference and making annotations in the books of issuing Certificates of marriage status.

3. After handing Decisions on recognition of fathers, mothers and children to involved parties; recording in the book the recognition of fathers, mothers and children for Vietnamese citizens which have been settled by foreign competent state agencies, Departments of Justice shall notify in writing to the commune-level People’s Committees where the birth registration of the children being Vietnamese citizens has been implemented for information and making annotations in the Birth Registers.

4. In case of Vietnamese citizens living in foreign countries who have been granted with Certificates of marriage status by diplomatic agencies, consular agencies and other agencies authorized to perform consular functions of Vietnam in foreign countries (below collectively referred to as the Representative Agencies), after their marriage registration, Departments of Justice shall send written documents to the Consular Department and the Ministry of Foreign Affairs to notify the Representative Agencies for making annotations in the book of issuing Certificates on marriage status.

Chapter II

GUIDANCE ON PROCEDURES FOR MARRIAGE REGISTRATION

Article 6. Marriage registration dossiers

Marriage registration dossiers shall comply with provisions in Article 7 of Decree No. 24/2013/ND-CP and are guided as follows:

1. Declaration for marriage registration

Each involved parties must prepare a Declaration for marriage registration (made according to a set form), write information of both marriage partners; sign and write clearly surnames and names of the Declarers. In case where both marriage partners are present when the dossier is submitted, it is only required to make 01 (one) Declaration for marriage registration, write information of both marriage partners; sign and write clearly names of both two persons.

If the Declaration for marriage registration verified the marriage status of involved persons by a competent state agency of Vietnam, it is not required to submit the Certificates of marriage status. If there is a Certificate of marriage status, it is not required a verification on the Declaration for marriage registration.

2. Proof documents for marital status

a) Vietnamese citizens residing in foreign countries (not concurrently have foreign nationalities) shall submit the verification on marital status issued by the Representative Agencies at countries where they reside or documents proving marital status issued by foreign competent state agencies where they reside.

b) Vietnamese citizens residing in foreign countries (concurrently have foreign nationalities) shall submit documents proving marital status issued by the competent state agencies in countries where they have nationality and certification of marital status issued by competent state agencies of Vietnam.

c) Stateless persons permanently residing in Vietnam must submit marital status certificate issued by the commune-level People s Committees where they reside.

3. Certificates of being eligible for marriage

Foreigners not residing in Vietnam, besides submitting proof documents of marital status issued by the competent agencies of the countries where they bear nationality or permanently resident, must also submit certificates of being eligible for marriage under the laws of those countries, unless the laws of those countries do not have provisions on issuance of these types of documents.

4. Certificates of being consulted, supported in marriage and families involving foreign elements for Vietnamese citizens

a) Certificates of being consulted, supported in marriage and families involving foreign elements for Vietnamese citizens (below collectively referred to as Certificates of the Center) issued by the Center for consultancy, support in marriage and family involving foreign elements to Vietnamese citizens in order to additional submit to their marriage registration dossiers in cases as prescribed in point b, clause 4 of this Article.

b) In marriage between Vietnamese citizens with foreigners, if involved persons are under one of following cases, it is required for them to go to the Center for being consulted or supported:

- Both parties differ 20 years old or more;

- Foreigners get married for the third time or married and divorced with wives or husbands who are Vietnamese citizens;

- Both parties do not understand well each other status of families or individuals; do not understand languages, customs, traditions, culture, laws on marriage and family of each country.

c) In case, a Vietnamese citizen is fluent in a foreign language used by the foreigner or the foreigner is fluent in Vietnamese, and results of the interview at the Department of Justice shows that both parties have an understanding of family and individual circumstances of each other, understanding of language, customs, traditions, culture, laws on marriage and family in each country, they do not have to additionally submit the Certificate of the Center.

Article 7. Order of marriage registration dossier

The order of settling marriage registration dossiers shall comply with provisions in Article 10 of Decree No. 24/2013/ND-CP and are guided as follows:

1. In case where involved persons have plausible reasons to be absent from the interview on the noticed day, it is required them to have a written suggestion for changing the interview to another day. The written suggestion must clearly state reasons of their absence. The next interview period shall not exceed 30 days, since the appointment day of previous interview and shall not be counted in the period of settling the marriage registration dossier.

2. During the interview, the cadres of the Department of Justice need to clarify the voluntary, marriage purpose of both parties, understanding of the family and personal circumstances of each party, language, customs, traditions, culture, law on marriage and family of the country or territory where the other party resides.

3. In the interview, if detecting that an interviewee has abnormal expression of awareness or cannot control his / her behavior, the officials of the Department of Justice may request such interviewee to have a re-examination at a specialized medical organization for mentality in Vietnam.

4. In cases where they deem the marriage is related to national security, social order and safety, have signs of unauthorized entry or exit, human trafficking, illegal marriage brokerage, sham marriages for the purpose of exit, profiteering or other matter relating to the functions of the Police Office, the Department of Justice shall issue a written document, together with a copy of the marriage registration dossier and send to the Police Office of the same level for requesting a verification.

If the period for the verification as stipulated in clause 2 of Article 10 of Decree No. 24/2013/ND-CP is expired but the Police Office has no written reply, the Department of Justice still have to complete the dossier and send its proposal to the Chairman of the provincial-level People s Committee for consideration and decision, which clearly state problems required the Police Office to verify.

Article 8. Marriage registration ceremony

The organization of a ceremony for marriage registration shall comply with provisions in Article 11 of Decree No. 24/2013/ND-CP and are guided as follows:

1. When organizing a ceremony for marriage registration, both marriage partners must be present and produce Identity Cards, Passports or documents having alternative values as laissez-passer or residence cards.

2. In case of having plausible reason that both marriage partners cannot be present to hold the marriage registration ceremony on day indicated by the Department of Justice, they must send a written request to the Department of Justice to extend time limit for the organization of their ceremony for marriage registration and clearly state reason that they cannot be present.

3. After 90 days from the date the Chairman of the provincial-level People s Committee signed the certificate of marriage registration but both marriage partners are not present for celebrating marriage registration, the Department of Justice shall report in writing to the Chairman of the provincial-level People s Committee, make notes that both marriage partners are not present for organizing the ceremony of marriage registration in the Marriage Certificate and keep records; this Marriage Certificate is invalid.

After that, if both marriage partners are still request to organize a ceremony for their marriage registration, it is required to conduct procedures for marriage registration from the beginning.

Chapter III

GUIDELINES ON PROCEDURES FOR ISSUING MARITAL STATUS CERTIFICATE TO VIETNAMESE CITIZENS WHO RESIDE IN THE COUNTRY FOR MARRIAGE REGISTRATION WITH FOREIGNERS AT FOREIGN COMPETENT AUTHORITIES IN FOREIGN COUNTRIES

Article 9. Dossier evaluation and verification to issue marital status certificates

The orders of evaluation and verification of dossiers for issuing marital status certificates to Vietnam citizens residing in the country to register their marriages with foreigners at competent foreign authorities in foreign countries shall comply with the provisions in Article 15 of Decree No. 24/2013/ND-CP and are guided as follows:

1. Within 02 working days from the date of receiving a valid and full dossier, and fee, the commune-level People s Committees shall check records and marital status of the requester for marital status certificate; send a written report on result of check and clearly state problems need to consult to the Department of Justice, together with the dossier.

2. The Department of Justice shall examine the validity, completeness of the dossier of issuing a marital status certificate.

Where it is necessary to clarify the identity, marital status, marriage conditions, the marriage purpose of the requester for marital status certificate, the Department of Justice shall conduct verification. In case where the headquarter of the Department of Justice is far away from the residence of the requester for marital status certificate, the Department of Justice may request the commune-level Justice Office to support in verification. After receiving the request, the commune-level Justice Office shall immediately conduct the verification and report the results to the Department of Justice.

Article 10. Interview with the requester for marital status certificate

The order for interview of the requester for a Marital status certificate in order to register his/her marriage at the foreign competent authorities in foreign countries under the provisions at clause 6 of Article 15 of Decree No. 24/2013 / ND-CP, is conducted as follows:

1. The Department of Justice shall assign its officials to conduct interviews with the requester for a Marital status certificate.

During the interview, the cadres of the Department of Justice need to clarify the marriage purpose of the Vietnamese citizen; understanding of the Vietnamese citizen about the family situation and individual circumstances of the foreign citizen, language, customs, traditions, culture, law on marriage and family of the country or territory where the foreign citizen resides.

2. Results of the examination, verification and interview of the Vietnamese citizen shall show one of the following cases in which the Department of Justice shall require the foreigner to come Vietnam for an interview of verification:

a) Both parties differ 20 years old or more;

b) The foreigner gets married for the third time or has already married and divorced with wives or husbands who are Vietnamese citizens;

c) The Vietnamese citizen does not understand about the family situation and individual circumstances of the foreigner; does not understand about the language, customs, traditions, culture, law on marriage and family of the country or territory where the foreigner resides;

d) The requester for the Marital status certificate expresses his/her intention to be absent for the marriage registration at a foreign competent state agency in foreign country.

3. The interview results must be recorded in writing, have signatures of the interviewers and the interviewees.

Article 11. Refusal for issuing the marital status certificate

The commune-level People s Committee shall refuse to issue a marital status certificate in one of the following cases:

1. Vietnamese citizens request for issuance of Certificates of marital status to get married with foreigners at diplomatic missions or consular missions of foreign countries in Vietnam.

2. The results of examination, verification show that the practical marital status of the involved persons is incorrect with the Declaration in the record; the involved persons are not eligible to marriage under the provisions of the Law on Marriage and Family.

3. The results of the interview shows that both marriage partners do not understand well each other status of families or individuals; do not understand languages, customs, traditions, culture, laws on marriage and family of each country.

4. The marriage of the involved person is not voluntary, not for the purpose of building a prosperous, equal, progress, happy and sustainable family.

5. The marriage is through illegal brokerage.

6. Taking advantage of the marriage for the purpose of exit, for profit or for other profit-seeking purposes.

Chapter IV

GUIDANCE ON PROCEDURES FOR RECORDING IN THE REGISTER THE MARRIAGE OF VIETNAMESE CITIZENS WHICH WERE SETTLED BY FOREIGN COMPETENT AUTHORITIES IN FOREIGN COUNTRIES

Article 12. Dossiers of marriage registration recording

Dossiers of marriage registration recording shall comply with provisions at Clause 2 Article 17 of Decree No. 24/2013/ND-CP and are guided as follows:

1. The requester for recording in the register of marriage must submit copies of documents proving on the personal identification of both marriage partners.

2. In case where the marriage certificate issued by the competent authority of the foreign country recorded information about proof of personal identification (for example: passport), it is required to submit copies of such documents that prove of personal identification.

Article 13.  Order of dossier settlement for marriage registration recording of Vietnam citizens residing in the country at the time of marriage

The order of and procedures for settling dossiers of recording in the registers for the marriage of Vietnam citizens residing in the country at the time of marriage shall comply with Article 17 of Decree No. 24/2013/ND-CP and are guided as follows:

1. After receiving a dossier, the Department of Justice shall examine papers or documents in the dossier, compare with the dossier of issuing the Marital status certificate of that citizen, if it deems that the issuance of the Marital status certificate secured due process, procedures, the marriage satisfied the conditions prescribed in Clause 1, Article 16 of Decree No. 24/2013/ND-CP, it shall record the marriage in the register.

In case where the Vietnamese citizen is granted marital status certificate in another province, the Department of Justice shall send a official letter to the Department of Justice where has given its opinion on the issuance of the Marital status certificate and requests for examination and comparison; if the Marital status certificate ensures the due process and procedures, the marriage satisfied the conditions prescribed in Clause 1, Article 16 of Decree No. 24/2013/ND-CP, it shall record the marriage in the register.

2. Where the marital status certificate is granted improperly with the order and procedures, the Department of Justice shall conduct verification, clarification. If result of the verification shows that the involved person is eligible for marriage (at the time of the request for Marital status certificate), the confirmed marital status of the Vietnamese citizen is true, and the Department of Justice shall still record the marriage in the register and issue a Certificate to the involved person.

After recording the marriage in the register, the Department of Justice shall send an official letter to the commune-level People s Committee which has issued the Marital status certificate to rectify and handle as prescribed.

Article 14. Rejecting to record in the marriage register

The Department of Justice is entitled to refuse recording in the register the marriage of Vietnamese citizen which has been settled by foreign competent authority in foreign country in one of following cases:

1. The marriage does not satisfy conditions specified in Clause 1, Article 16 of Decree No. 24/2013/ND-CP.

2. Using fake documents, papers which were edited or erased to conduct procedures for issuing a Marital status certificate, the marriage and to record into the marriage register.

3. The commune-level People’s Committee has not consulted the Department of Justice before granting the Marital status certificate to the citizen as prescribed in Article 15 of Decree No. 24/2013/ND-CP, concurrently the Vietnamese citizen has not satisfied conditions for the marriage (at the time of requesting the issuance of the Marital status certificate), the marital status of Vietnamese citizen was determined incorrectly.

Chapter V

GUIDANCE ON PROCEDURES FOR RECOGNITION OF FATHERS, MOTHERS OR CHILDREN

Article 15. Orders of fathers, mothers or children recognition

Orders of settling the recognition of fathers, mothers or children shall comply with provisions in Article 22 of Decree No. 24/2013/ND-CP and are guided as follows:

1. The listing document of the recognition of fathers, mothers or children must include information as follows: Surname and name, gender, day, month, year of birth, residential address, number of identity card or passport (if any) of the recognizers and the recognizers to be fathers, mothers or children; the registration period of recognition of fathers, mothers or children at the Department of Justice.

2. After receiving a complete and valid dossier either father, mother or child dies, the Department of Justice shall continue to settle the recognition of fathers, mothers or children as prescribed; if both parties die, they shall terminate the settlement of dossier of recognition of father, mother or child.

3. In the process of solving the dossier, if disputes, complaints or denunciations about recognition of the father, mother or child arise, the Department of Justice shall suspend the settlement of the dossier and guide involved persons to conduct procedure for requesting competent People s Court to settle according to civil proceeding procedures (for disputes on recognition of fathers, mothers or children) or request competent state agencies to settle (for complaints, denunciations of recognition of fathers, mothers or children).

4. In case, one party or both parties of recognition of father, mother or child have plausible reasons that cannot be present to receive the Decision on recognition of the father, mother or child in time determined by the Department of Justice, it is required to send a written document to the Department of Justice for requesting a change of time to receive the Decision, stating reasons thereof.

The Decision on recognition of father, mother or child takes effect on the date of its signing by the Director of the Justice Department.

Article 16. Recognition of fathers, mothers or children with birth registration

In the process of solving the recognition of fathers, mothers, or children under the provisions of Article 22 of Decree No. 24/2013/ND-CP that the child has not yet registered the birth, then the recognition of fathers, mothers, or children shall be combined with the birth registration as follows:

1. In case, the birth registration is under the jurisdiction of the Department of Justice, then Department of Justice shall combine the settlement of the recognition of fathers, mothers or children and birth registration. The birth proof paper (or document replacing birth proof paper) and declaration of birth registration has alternative value for the birth certificate in the dossier of registration for the recognition of father, mother or child.

2. In case where the birth registration is under the jurisdiction of the commune-level People’s Committee, the Department of Justice shall settle the recognition of father, mother or child first; The birth proof paper (or document replacing birth proof paper) and birth registration declaration has alternative value for the birth certificate in the registration dossier for the recognition of father, mother or child.

After settling the recognition of father, mother or son, the Department of Justice shall have a written notice, together with copies of the Decision on recognition of father, mother or child, Birth proof paper (or alternative document replacing the birth proof paper) and declaration of birth registration to send to the commune-level People s Committee to conduct birth registration for the child.

Chapter VI

GUIDANCE ON THE ORGANIZATION AND OPERATION OF THE CENTER FOR CONSULTANCY AND SUPPORT OF MARRIAGE AND FAMILY INVOLVING FOREIGN ELEMENTS

Article 17. Conditions for center establishment

Conditions for establishment of the Center for consultancy and support of marriage and family involving foreign elements (below collectively referred to as the Center) as prescribed in Article 31 of Decree No.24/2013/ND-CP and are guided as follows:

1. The operation address of the Center may be independent with the address for opening courses of consultancy and support, but it must ensure the area, working facilities, in accordance with the practice of each locality.

2. The Center must have at least 01 full-time consultant; in addition to it may use collaborators who are experts in the fields of language, culture – society or legislation to conduct consultancy and support.

Article 18. Center’s powers and obligations of the Center

Powers and obligations of the Center shall comply with provisions under Article 33 of the Decree No. 24/2013/ND-CP and are guided as follows:

1. When people ask for advice, support, the Center shall be responsible for:

a) Receiving requests for consultancy or support;

b) Arranging location and suitable expert for conducting consultancy or support;

c) Issuing the Certificate of the Center after finalizing the consultancy or support to the requester for supplementation of marriage dossiers as prescribed in clause 4 of Article 6 of this Circular.

2. The Center is entitled to give consultancy or support to all subjects at the request, regardless of nationality or place of residence of the requester.

3. Time for conducting the consultancy or support will base on an agreement between the Center and the requester; the Center will immediately issue the Certificate of the Center after finishing time for conducting the consultancy or support, without organizing an examination or a test.

4. The Centers for Marriage Support established under the provisions of the Government’s Decree No. 68/2002/ND-CP dated July 10, 2002 detailing the implementation of a number of articles of the Law on Marriage and Family regarding the marriage and family relations involving foreign elements, have not changed the name, organizational or operating model under the provisions of Decree No. 24/2013/ND-CP, shall be only permitted to provide the consultancy, support and issuance of Certificate of the Centre as prescribed in Clauses 1 and 3 of this Article and not be entitled to conduct activities according to the provisions of points g and h, Clause 1, Article 33 of Decree No. 24/2013/ND-CP .

Chapter VII

IMPLEMENTATION PROVISIONS

Article 19. Implementation effect

1. This Circular comes into effect on February 17, 2014.

2. Pursuant to Decree No. 24/2013/ND-CP, this Circular and the specific situation in the localities, the Departments of Justice may coordinate with related departments, sectors, agencies in submitting to provincial-level People s Committees to issue coordinative regulations for strengthening the management role of the State and good settlement of issues on marriage and family involving foreign elements in their localities.

3. In the course of implementation, if any problem arises, the provincial People s Committee, the Departments of Justice shall promptly report to the Ministry of Justice for guidance. /.

For the Minister of Justice

Deputy Minister

Dinh Trung Tung