Regulations in Vietnam on determining the fault of each party in violation of rights, duties of wife or husband

According to the Marriage and Family Law 2014 and Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016 by the Supreme People's Court, Supreme People's Procuracy, Ministry of Justice on guiding the implementation of some provisions of the Marriage and Family Law 2014 (Joint Circular No. 01), when dividing common property of a husband and wife in divorce, it may be necessary to determine the 'fault of each party in the violation of rights, duties of the wife and husband'. This regulation is one of the bases for determining the property division ratio.

- It is almost very difficult to specifically determine whether the wife or husband violates personal rights, property duties because in reality, in the marital relationship, there are many rights and duties towards each other, especially personal rights and duties such as 'love, loyalty, respect, care, support, help each other; share, perform family tasks together'. When the marriage breaks down, naturally, there have been conflicts between the two spouses and the acts of love, respect, care, and support each other... do not often occur. At this point, determining who cares for whom more becomes extremely difficult, as these are abstract, qualitative factors, not to mention putting these factors on the 'balance' with other rights and duties.

- Regarding violations of property rights and duties, paragraph 3 of Article 29 of the Marriage and Family Law 2014 provides that: The violation of the property rights and duties of the husband and wife infringing on the legal rights, interests of the wife, husband, family and others must be compensated. Therefore, it can be seen that the fault in the performance of property rights and duties of the husband and wife will lead to a civil compensation issue. Thus, the same wrongful behavior has legal liability regarding civil law and must bear losses when dividing property. In essence, compensation has been reviewed as a compensation for the fault caused by the other spouse to the other party, so some believe that this provision is not entirely fair and reasonable.

Joint Circular No. 01 provides examples to specifically explain the concept of 'fault of each party in the violation of rights, duties of the wife and husband' as follows: In case the husband has acts of domestic violence, disloyalty or destruction of property, when settling the divorce, the court must consider the husband's fault factor when dividing the common property of the husband and wife to ensure the legal rights, interests of the wife and minor children.

The above example only mentions existing factors that are easy to determine. But if the case puts forward the situation where the wife also has faults leading to acts of domestic violence, destruction of the husband's property or other difficult-to-determine faults that lead to serious marital situations such as insulting dignity, honor, disrespecting religious freedom, beliefs of the husband, then how will it be resolved? In fact, these faults are difficult to determine and difficult to collect evidence.

In general, the provisions of the law on determining the fault in dividing the property of the husband and wife are still vague, not clearly identifying the criteria for identifying faults, which fault can be considered for deduction when dividing and how to deduct in the common property block. Therefore, in the process of handling cases, courts at all levels when applying the law to resolve the division of the property of the husband and wife in divorce still face many difficulties in dividing and many cases are not brave enough to apply.

Because of the inadequacies in the regulation of 'fault' as one of the bases for considering the division of property of the husband and wife in divorce, some believe that the provision in point d clause 2 of Article 59 of the Marriage and Family Law 2014 on 'fault of each party in the violation of rights, duties of the wife and husband is stipulated' should be abolished.

At the same time, abolish point d clause 4 of Article 7 of Joint Circular No. 01 and example instructing this point, specifically abolish the instruction: 'Fault of each party in the violation of rights, duties of the wife and husband' is the fault of the wife or husband violating rights, duties on personal, property of the wife and husband leading to divorce and abolish the example: In case the husband has acts of domestic violence, disloyalty or destruction of property, when settling the divorce, the court must consider the husband's fault factor when dividing the common property of the husband and wife to ensure the legal rights, interests of the wife and minor children.

According to the author's viewpoint, despite certain limitations and obstacles, it is not necessarily to abolish this regulation, because in reality, the faults of the parties are usually the main causes leading to divorce, so it is necessary to consider this factor when dividing property to ensure the rights of the more affected party. For those who argue that the party at fault has already been legally responsible according to the marriage and family law and other related laws, there is no need to consider the fault factor when dividing property, the author believes that the fault in this case needs to be understood in a broader context, not only impacting the individual affected but also affecting the marital life, leading to other social consequences such as the development of children, families on both sides. Therefore, specifying fault as one of the factors to consider when dividing property is reasonable and necessary.

In the United States, most states choose to divide property by ratio instead of absolute 50/50 division (only 09 states specify equal division 50/50). Judges are flexible in considering factors to divide the common property of husband and wife, and fault is one of the factors to be considered, affecting the property division ratio (even in states where divorce does not need to prove fault).

From the above analysis and explanations, the author believes that the law should only consider violations of the rights, duties of the husband and wife directly leading to divorce as the basis for property division. In the court decisions on divorce settlements, the causes leading to divorce are always stated and only mention main causes such as acts of domestic violence, disloyalty... because usually these violations may lead to serious marital situations that cannot be salvaged. Therefore, if the law stipulates to only consider violations of the rights, duties of the husband and wife directly leading to divorce as the basis for property division, it will be reasonable and applicable in practice. To ensure fairness for the parties and reduce difficulties in determining the faults of the wife or husband for property division, the author proposes to amend clause 2 of Article 59 of the Marriage and Family Law 2014 as follows: 'Fault of each party in the violation of rights, duties of the wife and husband directly leading to divorce', and amend clause 4 of Article 7 of Joint Circular 01 as follows: 'Fault of each party in the violation of rights, duties of the wife and husband directly leading to divorce is the fault of the wife or husband violating rights, duties on personal, property of the wife and husband as a direct cause leading to divorce'.