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Logo of Phnom Penh Post newspaper Phnom Penh Post - Love and marriage... but what does the Cambodian law say?

Love and marriage... but what does the Cambodian law say?

T he Cambodian Law of the Marriage and Family was promulgated by the State of Cambodia

on July 26, 1989 and a new marriage law has not yet been passed.

Since the Cambodian Constitution provides that all previous laws remain in effect,

unless they are superseded by new laws, then this law currently defines the property

rights of spouses. Certain provisions of this law will impact on investors and they

need to be aware of its implications.

The Law on Marriages sets conditions on who may marry, which marriages are void (for

example, under-age spouses, forced marriages, prior marriage without divorce, too

close a relation, etc.), the rights and duties of spouses, and the grounds and procedures

for divorce.

In Section 4, the rights and duties of spouses, property issues important to investors

are addressed.

Article 32 states that each spouse has equal rights to use, obtain and manage joint

property and each is equally entitled to manage his or her own property.

Article 33 defines "joint property" as every thing which has been obtained

or earned by each spouse during the marriage. Sole property belonging to one spouse

alone is defined as property possessed prior to the marriage or property received

as a gift, inheritance or legacy during the marriage.

Article 37 states that when selling or giving away joint property, both spouses must

consent. Thus, in order for a transfer of title from a married couple to be effective,

both spouses must sign the purchase agreement in order for the sale to be valid.

It is not uncommon for a "spouse" to appear after a sale has been completed

and demand to be included in the sale. In this event, it is important to be aware

of recent Cambodian practices. During the State of Cambodia period of the 1980s,

occupation of land and buildings by an individual or a family was enough to give

the occupants certain usage rights to the structure. This "ownership by occupation"

was particularly pronounced in the urban areas where many families, upon return to

the cities, simply occupied whatever structure they desired or was available.

This right was informally recognized through the "family card" which was

issued by the State of Cambodia government for various purposes and named the family

and its address.

If a marriage took place prior to issuance of a family card, then this can be used

as a rough gauge of whether to obtain a spouse's consent to any land transfer. It

can also indicate whether a newly arrived claimant is indeed the spouse of the seller.

The situation with regard to inheritance is a bit less defined.

The most recent law detailing inheritance rights is the Civil Code promulgated in

the early 1970s. In the absence of more recent legislation, the courts would probably

look to this law for guidance.

The inheritance laws are wide ranging and fairly detailed.

Among other things, they cover the general rules of succession, rights of surviving

spouses and children in the event no will has been made, the general rules of succession

when there is a will, procedures for disinheriting, revocation and renouncing bequests,

as well as defining who has the capacity to receive under a will and what format

wills must follow.

Chapter III of the Code addresses those persons dying without a will (intestate).

Article 493 states that if a husband dies without a will, then the property is passed

to his children (and not his wife as would be the case in much of the West).

Under Articles 504, 505 and 506, the wife is appointed manager of the property and

entitled to use it for her benefit but she is essentially a trustee of the property

on behalf of the children.

If any of the children are married, they are entitled to seek a distribution of the

property and the wife cannot dispose of the property without the family's consent.

Chapter IV of the Code, Testamentary Succession (when there is a will), states that

a husband and wife can only dispose of 50 percent of their property to persons other

than their children (Article 536).

In addition, property that is owned but not mentioned in the will, is automatically

left to the wife and children (Article 530), presumably upon the same basis as a

person dying intestate.

In dealing with situations that may involve married couples, or when a party to a

contract has died, it is important to be aware of these laws.

Roberta Thami is an attorney associated with Dirksen, Flipse, Doran & Le,

an international law firm with regional offices in Vientiane, Phnom Penh and Ho Chi

Minh City.

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