English - CEDAW Southeast Asia

CEDAW and the Law:
as provide for their own wives and children, while their daughters will get married and move
out of the family house.
In view of these perceptions, a look at the provisions of the Civil Code, which at first
glance appear to be gender-neutral, may actually lead to discrimination against women and
girls. Provisions that allow the testator to freely choose heirs may operate to deprive daughters
and sisters of their inheritance on the basis of their gender (in favor of sons and brothers).
Likewise, provisions that give precedence to written agreement of heirs - that is, Article 684(1)
of the Civil Code - despite the testator’s will or inheritance at law, and the provisions of Article
676 of the Civil Code, may also circumvent the guarantee of women’s equal inheritance rights.
Although each person has a right to freely dispose properties after death to anyone, this
right should be limited in that it cannot be done in a manner that discriminates on the basis of
gender. There is a need for further study on this matter so that incidences of possible indirect
discrimination can be surfaced and addressed. Where incidences of contravention of the law
exists, most especially due to customs and discriminatory thinking, it is suggested that a
system of reserved inheritance be put in place for a specific portion of the testator’s estate for
compulsory heirs that cannot be easily disregarded by the testator without justifiable reasons
or even by written agreement of the heirs without appropriate safeguards, such as legal
counselling on women’s rights and consequences of disclaiming their portion of the estate.
This will address gender biases by the testators as well by relatives and other heirs who may
apply undue pressure on the women or girls to forego their rightful inheritance.
Having compulsory heirs or a reserved portion of the estate to ensure protection of
particular group of heirs is not alien to the inheritance laws of Viet Nam. Article 669 of the Civil
Code provides for “heirs independent from contents of testaments”, which states that minor
children, fathers, mothers, wives, husbands and adult children without working capacity are
entitled to a portion of the estate that is equivalent to two thirds of the portion given to an heirat-law,
if the estate is divided according to law, in cases where they are not allowed by the
testator to enjoy the estate or are allowed only a portion less than two thirds of their due part,
unless they disclaim the estate or are not entitled to the estate as per Article 642 of the Civil
Code. The system suggested can use Article 676 of the Civil Code as a basis for the
identification of compulsory heirs and their hierarchy of succession. With this system,
inheritance laws must also take note of alleged sales of property or of donations to transfer
property to male heirs, which operate to take away property for the estate and deprive women
and girls of a bigger share.
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Recommendation: Further study is recommended on incidences of indirect
discrimination relating to inheritance rights, in particular, the number of women or girls
who have not received inheritance as opposed to men or boys of equal relation to the
testator, whether by choice of the testator, by written agreement of the heirs or by other
means of circumventing equal inheritance rights; for example, alleged sales or
donations. It is suggested that a system of reserved inheritance be put in place for a
specific portion of the testator’s estate to be allotted for compulsory heirs, which
cannot be easily disregarded by the testator without justifiable reasons or by written
agreement of heirs without appropriate safeguards, such as legal counselling on
women’s rights and consequences of disclaiming their portion of the estate. This
system must provide for collation of property back to the estate in cases of donations
or alleged sales of property to male heirs, which operate to take away property for the
estate and deprive women and girls of their share in the estate.
Review of key legal documents and compliance with CEDAW