Nghị định 32/2002/NĐ-CP của Chính phủ quy định việc áp dụng Luật Hôn nhân và gia đình đối với các dân tộc thiểu số

DECREE

PRESCRIBING THE APPLICATION OF THE LAW ON MARRIAGE AND FAMILY TO ETHNIC MINORITY PEOPLE

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 9, 2000 Law on Marriage and Family;

In order to enhance the State management in the field of marriage and family, to protect the citizens legitimate rights and interests, to encourage the promotion of fine customs and practices then proceed to eliminate backward customs and practices of the ethnic minority people regarding marriage and family;

At the proposal of the Minister-Director of the Committee for Ethnic Minorities and Mountainous Areas,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.-Objects and scope of regulation

This Decree prescribes the application of the 2000 Law on Marriage and Family to ethnic minority citizens who are living in deep-lying and far-flung areas; prescribes the application of marriage and family customs and practices of ethnic minority groups living in deep-lying and far-flung areas.

Article 2.-Application of customs and practices on marriage and family

1. The fine marriage and family customs and practices of the ethnic minority people (listed in Appendix A to this Decree), which demonstrate the identity of each ethnic group and do not run counter to the principles prescribed in the 2000 Law on Marriage and Family shall all be respected and promoted.

2. The backward marriage and family customs and practices of the ethnic minority people(listed in Appendix B to this Decree), which contravene the principles prescribed in the 2000 Law on Marriage and Family, shall be strictly prohibited or eradicated through mobilization.

Article 3.-The State’s responsibility for the marriage and family ties of people of various ethnic minorities

The concerned ministries, branches and localities shall work out and implement policies and measures to create conditions for people of various ethnic minorities to abide by the law provisions on marriage and family; promote fine traditions, customs and practices of various ethnic groups, which demonstrate their respective identities and get rid of backward customs and practices on marriage and family.

1. To step up the propagation and dissemination of legislation on marriage and family, to mobilize people to bring into full play fine traditions, customs and practices and to do away with backward customs and practices on marriage and family.

2. To step up the propagation, mobilization, guidance and assistance of people to implement the policies on population and family planning.

3. To encourage everyone to educate people of young generations in preserving and developing the language, scripts and promoting the cultural values and fine traditions of each ethnic group.

Chapter II

PROVISIONS ON MARRIAGE

Article 4.-Marriage ages

Only men aged twenty or older and women aged eighteen or more are eligible to marry in order to ensure the race development and to ensure that men and women have enough health conditions and capability to take care of their family life. The People’s Committees of communes, wards, district townships (hereinafter called the commune-level People’s Committees), the Fatherland Front of the same level and its member organizations, the village patriarchs, the hamlet chiefs and religious dignitaries shall mobilize people to eradicate the customs and practice of marriage before the ages prescribed by the 2000 Marriage and Family Law (underage marriage).

Article 5.-Ensuring men’s and women’s rights to marriage freedom

1. Marriage shall be decided voluntarily by men and women, regardless of nationality, religion and belief and without coercion or deception of one party by the other.

The commune-level People’s Committees, the Fatherland Front of the same level and its member organizations, the village patriarch, the hamlet chiefs and religious dignitaries shall mobilize and persuade parents to guide their children in building progressive families and not to force or obstruct their marriage; mobilize everyone to get rid of the backward customs and practices which impede the rights to marriage freedom of men and women.

2. To strictly prohibit the custom of wife snatching in order to coerce women to be one’s wives.

Nobody is allowed to take advantage of physiognomy reading or other forms of superstitious practice to obstruct the exercise of the right to freedom of marriage of men and women.

Article 6.-Ensuring the rights to freedom of marriage of widows and widowers

1. Widows and widowers have the right to marry other persons and shall not have to return the marriage offerings to their ex-husbands or ex-wives families. When marrying other persons, their rights to children and property shall be protected by law.

2. To strictly prohibit the practice of forcing widowers or widows to marry other persons in the families of their ex-wives or ex-husbands without their consents.

Article 7.-The marriage between persons of direct lines of descent and between persons of the same line of descent

The marriage between persons of direct lines of descent or of the same lines of descent within three generations is strictly prohibited.

People are mobilized to eradicate the customs and practice of prohibiting marriage between relatives of the fourth generation on.

Article 8.-Marriage registration

The commune-level People’s Committee of the locality where either marriage partner resides shall effect the marriage registration.

In order to create favorable conditions for marriage partners, the marriage registration shall be carried out for people at the offices of the commune-level People’s Committees or at the population groups of street wards, villages, hamlets where either marriage partner resides.

When registering their marriages, men and women should fill in the marriage registration declaration forms and produce their people’s identity cards or valid substitute papers. After receiving the marriage registration declaration forms, the commune-level People’s Committees shall check them; if the parties have satisfied all conditions for marriage as provided for in this Decree, the marriage registration shall be effected. After the men and the women sign their names into the marriage certificates and the marriage registers, the commune-level People’s Committee presidents shall grant them the marriage certificates. The originals of the marriage certificates shall be handed to the husbands and their wives at the offices of the commune-level People’s Committees or their residence places.

The marriage registration for ethnic minority people in deep-lying and far-flung areas is exempt from fee.

Article 9.-Application of customs and practices regarding marriage proposal and wedding ceremonies.

1. The economical and healthy marriage proposal and wedding ceremonies which demonstrate the identities of ethnic groups and do not contravene the provisions of the 2000 Marriage and Family Law shall be respected and promoted.

2. The asking for high wedding presents of commercial nature ( asking for silver, cash, dowries, buffaloes, cows, gongs as wedding presents) and all acts of obstructing the marriage or infringing upon the women’s dignity are strictly prohibited.

Chapter III

RELATIONSHIPS BETWEEN WIFE AND HUSBAND, BETWEEN PARENTS AND CHILDREN, BETWEEN OTHER FAMILY MEMBERS

Article 10.-Equality between wife and husband

1. In families, wives and husbands are equal, having equal rights and obligations in all aspects.

2. For ethnic groups where exist patriarchal or matriarchal family ties characterized by customs and practices which do not ensure the equality between wives and husbands, the commune-level People’s Committee, the Fatherland Front of the same level and its member organizations, the village patriarchs, the hamlet chiefs as well as the religious dignitaries shall mobilize and persuade people to gradually do away with inequality between wives and husbands in their family relations, ensuring that wives and husbands have equal rights and obligations in all aspects as provided for by the 2000 Marriage and Family Law.

Article 11.-Residence places of wives and husbands

1. Wives and husbands choose by themselves or mutually agree to stay separately or together with either of their families, without having to be bound by customs and practices. After their marriages, wives and husbands shall be entitled to live together without obstruction by anybody.

2. Patrilocality or matrilocality shall apply only when it is compatible with the wives and husbands aspiration to choose their residence places.

Article 12.-The right to property inheritance between wives and husbands

1. The customs and practices which do not ensure the right to property inheritance between wives and husbands when either marriage partner dies shall be done away with through mobilization in order to ensure the legitimate rights and interests of the living partner.

2. The inheritance of each other’s property between wife and husband when either partner dies, which demonstrates the ethnic identities but does not contravene the law provisions on inheritance, shall be respected and promoted.

Article 13.-Parents obligations and rights towards their children

Parents have the obligations and rights to love, nurture, look after, take care of and educate their children and to ensure the equality among their children.

Parents are strictly prohibited to take any act of discrimination among their children, refrain from nurturing, taking care of their children, to deliberately prevent their children from going to school, to maltreat, abuse and hurt their children, to incite their children to commit acts of law violation against the social ethics.

People are mobilized to eradicate customs and practices which show discrimination between boys and girls in patriarchal or matriarchal families of ethnic minorities.

Article 14.-Relationships among members in the family, lines of descent

The fine customs and practices of ethnic groups, which express the spirit of unity, mutual support and assistance among members of the family and the line of descent shall be respected and promoted.

Chapter IV

REGISTRATION OF CHILD ADOPTION

Article 15.-Application of child adoption customs and practices

1. The State encourages the promotion of ethnic groups practices of adopting kith and kin in the lines of descent, who are in difficult plights, and supportless orphans if the adoption fully meets the conditions prescribed by law.

2. People are mobilized to get rid of the practice of adopting children where the adopters are not twenty years or more older than the adoptees.

Article 16.-Child adoption registration

The commune-level People’s Committees of the localities where the adopters or the adoptees reside shall effect the child adoption registration.

In order to create favorable conditions for the involved parties, the child adoption registration shall be conducted at the offices of the commune-level People’s Committees or at the population groups in wards, villages, hamlets, where the adopters or the adoptees reside.

When making the child adoption registration, the adopters shall have to file the child adoption application and other regular papers. After receiving the complete valid dossiers, the commune-level People’s Committees shall verify the child adoption application; if all the law-prescribed conditions for child adoption are met, the child adoption registration shall be effected. After the deliverers and the receivers of adopted children sign their names into the child adoption registers and records on hand-over and reception of the adopted children, the presidents of the commune-level People’s Committees shall sign the decisions to recognize the child adoption. Each party shall be handed an original of the decision on recognition of the child adoption at the offices of the commune-level People’s Committees or the residence places of the adopters or the adoptees.

The child adoption registration for ethnic minority people in deep-lying or remote areas shall be exempt from fee.

Article 17.-Cases of child adoption before January 1, 2001 but without registration at competent State agencies

For cases of child adoption made before January 1, 2001, the effective date of the 2000 Marriage and Family Law, without registration at competent State agencies, where all conditions prescribed by law have, however, been met and the relationships between the adoptive parents and the adopted children have already been established and the parties have fully exercised their rights and fulfilled their obligations, they shall be recognized by law and encouraged and given favorable conditions by the State for child adoption registration. If disputes over the parent-child relationships between the adopters and the adoptees arise, the courts shall settle them.

Chapter V

PROVISIONS ON DIVORCE

Article 18.-Settling divorces between wives and husbands

1. The courts shall settle divorces between wives and husbands

The practice of settling divorces by village patriarchs, hamlet chiefs or religious dignitaries shall be done away with through mobilization.

2. Before the courts process applications for divorces between wives and husbands, the State encourages village patriarchs, hamlet chiefs or religious dignitaries to make conciliation at the grassroots level. The conciliation shall be carried out in accordance with the law provisions on conciliation at the grassroots level.

Article 19.-Property division between wives and husbands upon their divorces

1. Upon their divorces, the division of the common properties of wives and husbands must ensure equality, reasonability and be carried out according to the principles prescribed by law.

For ethnic groups where exist patriarchy or matriarchy, attention should be paid to the protection of the legitimate rights and interests of the wives or the husbands in division of their common property upon their divorces.

2. The customs and practices of asking for property return and/or imposing fines when wives and husbands divorce are strictly prohibited.

Article 20.-The looking after, taking care of, nurture and education of children after divorces

After divorces, the handing over of minor children or grown-up children who are disabled, lose their civil act capacity or their working capacity and have no property to live on by themselves to either party to look after, take care of, nurture and educate must be based on the children’s interests in all aspects and must comply with the provisions of the 2000 Marriage and Family Law.

For ethnic groups where exist the patriarchy or matriarchy, the wives or husbands rights to directly look after, take care of, nurture and educate the children after their divorces should be protected.

Chapter VI

COMMENDATION, REWARDS AND HANDLING OF VIOLATIONS

Article 21.-Commendation and reward

Collectives or individuals that have merits in the dissemination, education and implementation of the 2000 Marriage and Family Law to ethnic minority people shall be commended and/or rewarded according to the provisions of law.

Article 22.-Handling of violations

The handling of acts of violating the legislation on marriage and family by people of various ethnic minorities shall comply with the provisions of law, but taking into account the influence and impacts of customs and practices for appropriate application.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 23.-Responsibilities of the Committee for Ethnic Minorities and Mountainous Areas

1. To assume the prime responsibility and coordinate with the Ministry of Justice and the Ministry of Culture and Information in assisting the Government in directing, guiding and inspecting the implementation

2. To assume the prime responsibility and coordinate with the Ministry of Justice and the Ministry of Culture and Information in organizing the compilation of books and popular documents on the basic contents of the 2000 Marriage and Family Law and the translation thereof into ethnic minority languages for dissemination and education of law to people of various ethnic minorities.

Article 24.-Responsibilities of the Ministry of Justice

1. To guide and direct the justice agencies at all levels to intensify activities of legal consultancy on marriage and family and to implement the provisions of this Decree.

2. To include the contents of dissemination and education of the 2000 Marriage and Family Law to ethnic minority people into the contents of activities of the Councils for coordination in law popularization and education at the central and local levels; to coordinate the direction and guidance of the activities of the Councils for coordination in law popularization and education at all levels.

Article 25.-Responsibilities of the Ministry of Culture and Information

1. To assume the prime responsibility and coordinate with the Committee for Ethnic Minorities and Mountainous Areas and the Ministry of Justice in working out and implementing plans and measures for disseminating and educating the 2000 Marriage and Family Law to ethnic minority people on the mass media, especially on the public-addressing networks of communes, villages or hamlets and at the meetings of village patriarchs, hamlet chiefs or religious dignitaries, in order to mobilize ethnic minority people to observe the provisions of law, get rid of backward customs and practices regarding marriage and family.

2. To direct local culture-information offices in building cultured villages, working out plans for dissemination and education of the marriage and family legislation to ethnic minority people.

3. To direct the mass media to draw up and implement special programs on propagation of the basic contents of this Decree; propagate the fine customs and practices on marriage and family of various ethnic groups, creating public opinions in mobilization for gradual eradication of backward customs and practices on marriage and family.

Article 26.-Responsibilities of the Finance Ministry

1. To guide the estimation of annual funding for the propagation, dissemination and education of the legislation on marriage and family to ethnic minority people.

2. To promulgate and guide the implementation of, the emolument and allowance regimes for officials directly carrying out the marriage registration and child adoption registration in deep-lying and remote areas, and effect the regime of emoluments for village patriarchs, hamlet chiefs, religious dignitaries, commune as well as mass organization officials, who participate in the dissemination and education of legislation on marriage and family to ethnic minority people.

Article 27.-Responsibilities of the People’s Committees of the provinces and centrally-run cities

1. To direct the Committee for Ethnic Minorities and Mountainous Areas, the provincial/municipal Justice Services and Culture-Information Services to assume the prime responsibility and coordinate with the provincial/municipal Fatherland Front Committees as well as socio-political organizations in the localities in elaborating and submitting to the provincial/municipal People’s Councils for approval:

a) The list of fine customs and practices on marriage and family of various ethnic groups, which are encouraged for promotion in the localities.

b) The list of backward customs and practices on marriage and family of various ethnic groups, which should be done away with through mobilization.

2. To estimate and submit to the People’s Councils of the same level for approval the fundings for propagation, dissemination and education of the legislation on marriage and family to ethnic minority people and direct the People’s Committees of the same level to implement them.

3. To direct and guide the People’s Committees of all levels to organize the annual conferences of village patriarchs, hamlet chiefs and religious dignitaries to review, evaluate and draw experiences from, the work of propagation and education for the implementation of the legislation on marriage and family and the mobilization for eradication of backward customs and practices on marriage and family; to commend and reward those who record achievements and multiply good models in localities.

Article 28.-Implementation effect

1. This Decree takes implementation effect 15 days after its signing.

2. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.

APPENDIX A

THE LIST OF ETHNIC GROUPS’FINE MARRIAGE AND FAMILY CUSTOMS AND PRACTICES ENCOURAGED FOR PROMOTION, AS PRESCRIBED FOR THE APPLICATION OF THE 2000 MARRIAGE AND FAMILY LAW TO ETHNIC MINORITY PEOPLE

(Promulgated together with the Government’s Decree No. 32/2002/ND-CP of March 27, 2002)

1. The monogamy- the basic form of marriage practiced by most ethnic groups, which is protected by law and encouraged for promotion.

2. Men and women are free to court each other and choose their companions in life.

3. After their marriage, depending on the arrangement and agreement between the two families, the couples may stay matrilocally or patrilocally.

4. Parents have the responsibility to nurture and educate their children to be good people, to compensate for damage caused by their children.

5. Children are obliged to obey and take care of their grandparents and parents when they get old. In the family and society, the hierarchic order is observed; children are treated equally without any discrimination between girls and boys, between offspring and adopted children.

6. The customs of permitting to take other persons as adopted children or to be adopted by other persons without discrimination between lines of descent, ethnic groups. The adopters must be the married persons. The adoptees must be children without anyone to rely on and being incapable of supporting themselves.

7. The customs and practices of adopting orphans, looking after the adopted children and regarding adopted children as offspring, regarding adopted children and biological children as blood brothers and sisters, adopted children shall enjoy all rights like the biological children.

8. The customs and practices of accepting marriages between people of different ethnic groups.

9. Wives and husbands are equal to each other in bringing up and educating children, caring for and assisting each other. Parents teach and instruct their children gently and educate them in the spirit of industriousness and create for them the sense of hard working and self-reliance. The women play an important role in families and there’s not any discrimination in the relationships among family members.

10. The sustainable marriage and family ties.-

Appendix B

THE LIST OF ETHNIC GROUPS BACKWARD MARRIAGE AND FAMILY CUSTOMS AND PRACTICES, BANNED FROM APPLICATION OR ERADICATED THROUGH MOBILIZATION AS PRESCRIBED FOR THE APPLICATION OF THE 2000 MARRIAGE AND FAMILY LAW TO ETHNIC MINORITY PEOPLE
(Promulgated together with the Government’s Decree No.32/2002/ND-CP of March 27, 2002)

I. BACKWARD MARRIAGE AND FAMILY CUSTOMS AND PRACTICES WHICH ARE MOBILIZED FOR ERADICATION

1. Marriage before the ages prescribed by the 2000 Marriage and Family Law (underage marriage).

2. Marriage registration not carried out by the commune-level People’s Committees.

3. Forcing marriages due to physiognomy and astronomy reading and superstition; obstructing marriages due to ethnic and religious differences.

4. Prohibiting marriages between relatives of the fourth generation on.

5. If the men’s families have no money for wedding and no wedding presents, after the marriage, the sons-in law are forced to stay matrilocally to work for their parents-in-law.

6. The patriarchal or matriarchal family ties which do not ensure the equality between wives and husbands as well as between girls and boys.

a) Patriarchy:

- Upon the divorce, if at the wife’s request, the wife’s family shall have to return to the husband’s family all the wedding presents and other costs; if at the husband’s request, the wife’s family shall still have to return to the husband’s family half of the wedding presents. After the divorce, if the woman marries another person, she is not allowed to enjoy and take any property away. After the divorce, the children must live with their fathers.

- When the husbands die, the widows are not entitled to enjoy the heritages left behind by the husbands. If the widows remarry other persons, they are not allowed to enjoy and take away any property.

- When the fathers die, only sons are entitled to enjoy the heritages left behind by the late fathers.

b) Matriarchy:

- The children are forced to bear their mothers family names.

- When the wives die, the widowers are not allowed to enjoy the heritages left behind by their late wives and to take their personal property home.

- When the mothers die, only daughters are entitled to enjoy the heritages left behind by their late mothers.

- After their matrilocality, if the sons-in-law are denied the marriage or after the marriage proposing ceremony and the wedding offerings being accepted, the sons-in-law are denied the marriage, they shall not be compensated therefor.

7. Rejecting marriages between people of different ethnic groups or between people of different religions.

II. BACKWARD CUSTOMS AND PRACTICES WHICH CONTRAVENE THE PROVISIONS OF THE MARRIAGE AND FAMILY LAW AND MUST BE STRICTLY PROHIBITED FROM APPLICATION

1. Polygamy.

2. Marriage between people of the same direct lines of descent, between relatives within three generations.

3. The customs of snatching wives in order to coerce women into marriage.

4. Asking for high wedding presents of commercial nature (asking for silver, cash, dowries, buffaloes, cows, gongs as wedding offerings).

5. The customs of string binding: When husbands die, the widows are forced to marry their elder or younger brothers-in-law (Levirat); when wives die, the widowers are forced to marry their elder or younger sisters-in-law (Sororat).

6. Forcing the widows or widowers, who remarry other persons, to repay the wedding money to the families of their ex-husbands or ex-wives.

7. Claiming back properties, imposing fines when the wives or husbands ask for divorce.-