If the marriage is not registered, who has custody of the child?

(Baonghean)- Legal situation: Information provided by Mr. TV D (Vinh City): Mr. D and Ms. Y loved each other and lived together but did not register their marriage. In 2014, Ms. Y gave birth to a child, then the two broke up. Mr. D's family wanted to raise the child but Ms. Y refused.

Question: If the marriage is not registered, does the child custody belong to Mr. D or Ms. Y? What should Mr. D do if he wants to raise the child? What is the legal basis?

Reply:

According to Clause 1, Article 11 of the 2014 Law on Marriage and Family: “Marriage must be registered and performed by a competent state agency in accordance with the provisions of this law and the law on civil status; Men and women who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife; Marriages that are not registered in accordance with the provisions of this clause are not legally valid”. Clause 1, Article 88 of the 2014 Law on Marriage and Family: “Children born during marriage or due to the wife being pregnant during marriage are the common children of the couple; children born within 300 days from the date of termination of the marriage are considered children due to the wife being pregnant during marriage; Children born before the date of marriage registration and recognized by their parents as the common children of the couple.

From the above regulations, we see that although Mr. D and Ms. Y love each other, live together and have children, but do not register their marriage, they will not be recognized as husband and wife. Therefore, a child born without a marriage certificate will not be recognized as a common child. If Mr. D has evidence to prove that he is the father of the child, then Mr. D has the right to claim custody of the child from Ms. Y.

If Mr. D has completed the procedures to acknowledge the right to child custody, the right to child custody is stipulated in Clause 1, Article 14 of the 2014 Law on Marriage and Family: Men and women who are eligible to marry according to the regulations and live together as husband and wife without registering their marriage do not create rights and obligations between husband and wife. Rights and obligations towards children, property, obligations, and contracts between the parties are resolved according to the provisions of Articles 15 and 16 of this law.

Accordingly, Mr. D and Ms. Y will agree on who will directly raise the child, the obligations and rights of each party after the divorce towards the child. In case of failure to reach an agreement, the court will decide to assign the child to one party to directly raise, based on the child's interests in all aspects. If the child is 7 years old or older, the child's wishes must be considered. Children under 36 months old will be assigned to the mother to directly raise, unless the mother is not qualified to directly care for, raise and educate the child or the parents have another agreement in accordance with the child's interests.

Thus, if Mr. D has completed the procedures to adopt the child according to the law, but both Mr. D and Ms. Y have not agreed on who will raise the child after the end of their cohabitation, the court will decide based on the child's interests. Therefore, when a dispute over child custody occurs, to ensure the opportunity to win custody, Mr. D needs to provide evidence to prove that the child living with Mr. D will be better than living with Ms. Y such as (affection for the child, material conditions, work, income, accommodation of Mr. D, Ms. Y...).

Law Office of Trong Hai & Associates