Reference situation:

A Vietnamese man immigrated to Italia for living and working, and was issued a residence card in 2013 in Italia. In 2014, this man got married to a Vietnamese woman in a commune-level people’s committee in Vietnam. The woman is carrying out the procedures for her immigration into Italy, however, the Embassy of Italy in Vietnam requests her to provide a certificate of marriage registration which is issued by a district-level people’s committee (instead of a commune-level people’s committee). The woman would like to consult lawyers to give legal advice for the following problem.

Legal grounds:

1. Law on Civil Status No. 60/2014/QH13
2. Law on Vietnamese nationality No. 24/2008/QH12
3. Law on Marriage and Family No. 52/2014/QH13

Our legal advice:

Case 1: The man is Vietnamese at the moment

Clause 1 Article 17 of Law on civil status 2014 provides that “Commune-level People’s Committees of the place of residence of either of the male and female partners shall make marriage registration”. Therefore, the commune-level people’s committee issued the certificate of marriage registration to them legally. That the Embassy of Italy required a certificate of marriage registration issued by a district-level people’s committee, is not in accordance with the law of Vietnam. Therefore, they should explain to the Embassy about this.

Case 2: The residence card in 2013 of the man provided that he will reside and live permanently in Italy 

In this case, the husband will be considered a Vietnamese living oversee under clause 3 article 3 of Law on Vietnamese nationality 2008 “A Vietnamese residing abroad is a Vietnamese citizen or a foreigner having Vietnamese descent residing and living permanently abroad”

Clause 1 Article 37 of Law on Civil Status 2014 provides that “District-level People’s Committees of places of residence of Vietnamese citizens shall register marriages between Vietnamese citizens and foreigners; between Vietnamese citizens residing in the country and Vietnamese citizens residing abroad; between Vietnamese citizens residing abroad; and between Vietnamese citizens who also have foreign citizenship and Vietnamese citizens or foreigners”

The marriage, in this case, is between a Vietnamese citizen (the woman) and a Vietnamese residing abroad (the man). Therefore, the District-level People’s Committee will have the authority for the registration of their marriage instead of the commune-level People’s Committee. Article 13 of the Law on marriage and family 2014 provides the solutions to handle this problem as follows:

“For a marriage which is registered ultra vires (not subject to right authority), a competent state agency shall, upon request, withdraw and cancel the marriage certificate in accordance with the civil status law and request two partners to re-register their marriage with a competent state agency. In this case, the marriage relation shall be established on the date of the previous marriage registration.”

In conclusion, they should request the District-level People’s Committee to withdraw and cancel the certificate of marriage registration issued illegally by the Commune-level People’s Committee. Then they will re-register their marriage in the District-level People’s Committee and their marriage will still be established from 2013. Afterward, they can submit the legal certificate of marriage registration issued by the District-level People’s Committee to the Embassy of Italy.