This article is to bring a little hint about Cambodian Law on Marriage and Family into the world’s attention. Throughout the text, from general information up to the analytical approached over the law herein will be covered.
This Law was adopted during the mandate of the State of Cambodia.
I. Marriage Procedure
Unless arisen from mutual agreement to enter into conjugal life, marriage cannot be proceeding. With reference to Chapter III, Article 3; “A marriage is a solemn contract between a man and a woman in a spirit of love in accordance with the provisions of law and with the understanding that they cannot dissolve it as they please.” This article has indirect imply that marriage is a voluntary decision and not decision made on the basis on any form of external pressure (Article 4 “One party may not force another party to marriage against his/her will. No one can be forced to marry or prevented from having marriage …)
In compliance to general principle of social-order mechanism, the Cambodian Law on Marriage and Family also requires other elements legal just to make any marriage a legal one. In Article 5 of Chapter II states, “A marriage may be allowed for a man whose age is 20 years or more and a woman whose age is 18 years or more.” Except, in the special case that the woman is pregnant with mutual consents from both party, a man and a woman younger than the legal ages may legally enter into a marriage.
However, marriage is prohibited under these conditions:
– a person whose sex is the same sex as the other;
– a person whose penis is impotent;
– a person who has leprous, tuberculosis, cancer or venereal diseases which are not completely cured;
– a person who is insane, and a person who has mental defect;
– a person who was bound by prior marriage which is not yet dissolved.
Moreover, marriage is prohibited when the following conditions come to existence:
A marriage “between persons who are relatives by blood or who are relatives by marriage in direct line of all levels, whether or not legitimate or adoptive” (Article 7); and
“Between the collateral, whether legitimate, illegitimate or adoptive, or whether from the same mother, the same father or the same parents, or whether relatives by blood or relatives by marriage up to the third level inclusively…” (Article 8).
II. Grounds of Divorce:
In reflection to Article 3, “A marriage is a solemn contract between a man and a woman in a spirit of love in accordance with the provisions of law and with the understanding that they cannot dissolve it as they please.” The term: they cannot dissolve it as they please shows an indirect implication that divorce can only be made under concrete and legal conditions stipulated within the law.
Like the legal procedure for marriage, divorce may also be made on the ground of mutual divorcing consent.
Pursuant to Article 38: “divorce is the legal termination of a marriage between a husband and wife who have been legitimately married and they are both still alive.” Divorce cannot be entered when any party is deceased, that’s why we have the term divorced and widowed.
Article 39 clearly tabulates the grounds for divorce as of the following:
1. desertion without a good reason and without maintenance of and taking care of the child;
2. cruelty and beatings, persecutions and looking down on the other spouse or his or her ancestry;
3. immoral behavior, bad conduct;
4. impotence of penis; and
5. Physical separation for more than one year.
III. Procedures for Divorce:
Procedures for divorce may be, to some extent, overwhelmingly sophisticated, since it has been of the opinion that divorce does not only bring negative aspects to the parties, but also to the society. The following paragraphs will deal with necessary reason for divorce, jurisdictional court, application procedures and other conditions applied in the divorcing procedures.
Complaint for divorce can be made by one party (husband or wife) or by both parties who mutually agreed to end their bonds of conjugal life (Article 40).
Any party or both party who whish to break legal bonds of conjugal life shall make the divorce complaint a formal one. Complaint to the court, as addressed above, is sophisticated and formal, so writing rather than oral is strongly suggested; moreover, the plaintiff is also suggested to lodge the complaint by her or himself. With reference to Article 42; “The complaint for divorce shall be in writing and shall indicate the reasons for divorce.” It is also suggested that reasons for divorce shall be contented in the divorce complaint; this is to make a smooth hearing schedule and procedures.
However, to whom should the divorce complaint be forwarded to? Article 41 stipulates that “the adjudicating jurisdiction for divorce lies with the People’s Provincial or Municipal Court where a defendant resides.”
Procedures before the hearing
As addressed above, divorce does not only affect the divorcing parties, but the child(ren) as well as the State. So, indeed, the Law enacts different strategies for the court to reconcile the divorcing parties.
According to the Cambodian Law on Marriage and Family, the court is authorized to take “reconciliation” for three times, before the final judgment specifying the divorce judgment between the parties is issued. Moreover, during each reconciliation session, report must be radically written down in what we call “reconciliation record.” And apparently, reconciliation strategies deployed to all the three reconciliation sessions are not the same. Article 51 states that “the period between each reconciliation shall be at least one month and at most two months.” And Article 53; “if the reconciliation did not reach an agreement, the People’s Provincial or Municipal court must issue summons inviting a husband and wife to come to the court for trial.”
Due to the fact that marriage cannot be dissolved as the party please, concrete and sufficient evidence must be presented during the hearing to convince the judge to issue the divorce judgment and if necessary, the court may investigate the case.
However, divorce is easy if it is arisen from voluntary and mutual consent of both parties [absence of mistakes or external duress].
Divorce judgment is not one-stop (absolute), the party who does not agree to get divorced his/her spouse is authorized an file an objection or appeal within the legal time frame [usually two moths from the date the judgment is publicly announced].
IV. Effectiveness of Divorce
The Law on Marriage and Family does not provide any definition for the term “divorce”, but through my understanding, divorce is a legal rescission of a legal marriage, after the divorce judgment is issued.
Article 69 states that, “a divorce ends a marriage from the day when the final judgment is announced. So as written above, only after the issuance of court’s judgment, does the divorce is considered legal and so enforceable.
However, the case does not only end when the judgment is issued; other cases are also accompanied, such as child or children and properties (movable or real estate). Divorcing parties may share the child or children as well as the property in accordance with their mutual contract or in case of there is no contract, they can just take the property that they own before they share conjugal life. Article 70 states that “if there is no agreement, each spouse take only his or her property which he or she has received by inheritance, gift or devise during the existence of the marriage. The property owned before union existence is called “separate property” and property earned after the marriage is called “joint property”, or “community property.” And this community property may be shared by mutual consent of the parties or court’s judgment.
Custody of the child or children, would facilitate one party to have more property than another party who does not attain the legal custody of the child or children. The party to whom the child or children custodies are not fallen upon, is obliged to provide alimony, as per his or her ability or mutual consent until the said child or children reach majority age (Article 76).