RESEARCH ON LAW ON MARRIAGE

 Differences between current Civil Code / 1989 Law on Marriage and Family
 Special point on Divorce Property Division
 Personal opinion on how the legislation was formed and altered to serve the needs of society

The Law on Marriage and Family was passed on July 17, 1989, while the new Civil Code of
Cambodia was adopted on December 8, 2007. Eighteen years separate the Law on Marriage and
Family and the promulgation of the current Civil Code. Since then, the Kingdom of Cambodia
has changed a lot in all of its aspects on society, economy, politics. The comparison between the
two legislations will show at what extent the law is formed and altered to serve the needs of the
society. Still today, marriage is a highly valuable institution in Cambodia and divorce is not a
common concept1.

I. MARRIAGE

1) Marriageable age

The first difference between the two legislations is the age required for people in order to
get married. Indeed, the Law on Marriage and Family of 1989 starts with Article 2 stating that a
marriage of a too young couple shall ‘’absolutely’’ be prohibited 2. It reveals the concerns going on
at the time of young couple, sometimes under aged, who wish to get married, or were forced to
do so. The phrasing is not too clear, it does not state a specific age and remains quite imprecise.
Article 5 comes to provide a clarification: ‘’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’’ 3. We can notice the difference
between men and women, women being allowed to marry at a younger age than men. It is well-
known that women marrying early tend to ‘’have less education and being childrearing earlier,
have less decision-making power in the household (…) and are more likely to experience
domestic violence’’4. In today’s Civil Code, the principle is that men and women shall not marry
until they reached the age of 18 according to Article 948. In the recent years, the trend changed
and the society wish for more equity between men and women.

Both legislations provide exceptions for the legal age to get married. The Law on Marriage
and Family shows once again how unequal and different were the positions of men and women
at this time. Article 5 points out a specific situation where a man, who did not reach the age of 20
years yet, and a woman less than 18 years who got pregnant, could get married. The article
requires the consent of the parents or guardian. There is no limit on how young the woman can
be, we can only rely on Article 2 for the woman not to be ‘’too young’’ and hope for the consent of
the soon-to-be-married couple to be authentic, pressure from family being quite common.

1
Dorine VAN DER KEUR, Legal and Gender Issues of Marriage and Divorce in Cambodia, Cambodia Law and Policy
Journal, Vol. 3, December 2014 http://cambodialpj.org/wp-content/uploads/2014/05/DCCAM_CLPJ_Dorine.pdf
2
Article 2, Law on Marriage and Family, 1989
3
Article 5, Law on Marriage and Family, 1989
4
Robert JENSEN and Rebecca THORNTON, Early female marriage in the developing world, Gender and
Development, Vol. 11, No. 2, July 2003 (abstract)
 In the Civil Code, the limit is set. Exceptions can be granted when one of the parties has
attained the age of majority, and the other party be a minor at least 16 years of age. Once again,
the condition of the consent of the parental authority holders (‘’parents’’ are no longer
mentioned) or the guardian of the minor is needed. There are also some provisions on the case
the parental authority or guardian refuses to consent according to Article 953. Pregnancy is no
longer the condition for young people to get married. Getting pregnant before marriage was used
to be largely seen as a wrong and shameful behavior. The Law on Family and Marriage tried to
deal with this issue by allowing young girl to get married and get a legitimized marriage in order
to not go against the social norms at this time.

2) Prohibitions of marriage

Article 6 of the Law on Marriage and Family states five prohibitions for people to get
married:

- 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.

Articles 7, 8 and 9 added to the list of prohibitions the case of consanguinity, collaterals and
remarriage after dissolution of a marriage for a specific period of time. The prohibitions are
numerous, they include persons not in capacity to have biological children, and persons with
venereal diseases or serious diseases among others things. Now, these particularities are not so
important, because remedies are found and people can live with these issues. Moreover, freedom
of choosing his/her partner is more and more important.

In the Civil Code of 2007, some prohibitions remain: bigamy, remarriage before a certain
period of time, consanguinity and relatives. Marriage of a General Ward is now authorized if
he/she has the minimum capacity required to effect a marriage.

Today, the Civil Code still does not recognize same-sex unions. Article 944 on the
Formation of engagement, the step before the actual marriage, states that the promise to marry in
the future shall be made ‘’between a man and a woman’’. However, in practice, Cambodia
recognizes a registry program of ‘’Declaration of family relationship’’ which is a civil contract
between two people who are willing to be together and share responsibility taking care of the
family, children and distribute the joint asset, as legal spouses do’’ 5.

3) Previous focus on forced marriage

Before, forced marriages and arranged marriages, sometimes with mutual consent, were quite
common in Cambodia. From 1975 to 1978, the country faced an upsurge of cases of forced

5
https://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Cambodia
https://www.apcom.org/rainbow-community-kampuchea-organisation-rock-our-journeys-towards-marriage-
equality/
marriages under the Khmer Rouge regime 6. This can largely explain the focus on this aspect on
the Law on Marriage and Family issued in 1989 which sought to deal with this issue. Article 2 is
the first provision related to forced marriages. The phrasing shows the will of the lawmakers to
tackle this type of marriage which are not suitable for a peaceful society: ‘’A marriage (…) by
force shall absolutely be prohibited’’7. Article 3 states that marriage should be contracted ‘’in a
spirit of love’’8. Article 4 follows the same patent, providing that ‘’No one can be forced to marry
(…)’’9. Finally, Article 14 again uses a pertinent term ‘’man and women who voluntarily takes
each other as husband and wife (…)’’ 10. The aim is to enforce the principle of mutual consent
between one husband and wife, which has been included later in Cambodia’s Constitution of
199311.

Nowadays, the Civil Code no longer uses the term of ‘’forced marriage’’ showing it has
become less common, even though the phenomenon still exists, often in the form of arranged
marriages. Men and women have more freedom to choose their own life partner. There are much
less provisions on forced marriage. Article 958 on Nullity of marriage states that a marriage shall
be void should there be no intention to marry between the parties on the account of coercion 12.
Article 963 provides the procedure to apply for annulment of a marriage based on duress,
another legal term to say forced. Spouses have three months from the time they became free of
the duress to apply to the court for annulment of marriage. The period to apply has been
reduced, indeed, the Law on Marriage and Family required the spouse to lodge a complaint
within six months counting from the day the spouse has been forced13.

4) Void of marriage

In the Law on Marriage and Family, the husband and wife must enter into a marriage
arrangement before the registrar in the jurisdiction where the bride resides, or else the marriage
shall be deemed illegitimate14. In the Civil Code, Article 958 states that if the parties make a
mistake in the marriage process such as effecting notification, public notice, concluding a contract
of marriage or registration, the marriage shall be treated as void. However, Article 958 adds that a
slight procedural defect alone in the marriage process shall not preclude validity of the
marriage15. The procedure has been lightened, this simplification certainly being for practical
reasons in order to promote stability with regard to the institution of marriage.

Concerning the author of the marriage annulment complaint, the 1989 Law allowed the
spouse, the prosecutor and the legally interested person to act. Today, authors are reduced to the
spouse, their parents or a public prosecutor. The former spouse of the party shall be added to the
list in the case of bigamy or remarriage.
6
Theresa DE LANGIS, Judith STRASSER, Thida KIM, Sopheap TAING, Like ghost changes body, A study on the
impact of forced marriage under the Khmer Rouge regime, October 2014, p.28 – 30
https://kh.boell.org/sites/default/files/forced_marriage_study_report_tpo_october_2014.pdf
7
Article 2, Law on Marriage and Family, 1989
8
Article 3, Law on Marriage and Family, 1989
9
Article 4, Law on Marriage and Family, 1989
10
Article 14, Law on Marriage and Family, 1989
11
Article 45, Constitution of Cambodia, 1993
12
Article 958, Civil Code, 2007
13
Article 23, Law on Marriage and Family, 1989
14
Article 14, Law on Marriage and Family, 1989
15
Article 958, Civil Code, 2007
 One more difference which can be found between the two legislations regarding annulment
of marriage, is the legal period before a woman may remarry after annulment of the first
marriage. In fact, this provision applies for any case after the dissolution of a marriage. A woman
shall remain in a legal period of conception until at least 300 days after the annulment of the
marriage, or else the new married husband shall be automatically considered as the natural father
of a child born during marriage. Now, the Civil Code has reduced the legal period of conception
up to 120 days from the day of annulment of the previous marriage. Some says that these
provisions are discriminatory against women16.

5) Rights and duties of the spouses

If we look at the Civil Code of 2007, we can see it is much less furnished with provisions on
the rights and duties of the spouses than the Law of 1989. The first reason may be explained by
the fact that some ideas conveyed by the Law on Marriage and Family entered into the
Constitution of Cambodia which came into force in 1993. Article 2 of the Civil Code states clearly
that it refers to the Constitution regarding fundamental concepts such as sexual equality. Article
29 on Equality of the 1989 Law provides that ‘’in a family, a husband and wife are equal in all
aspects’’. Now, it is portrayed in Article 45 of the Constitution 17. In the contrary, the idea
conveyed by Article 31 of the Law on Family and Marriage on the right to choose occupation
regardless of the sex of the spouse can be found in the Civil Code in Article 967, and is taken
directly from Article 36 of the Constitution.

Another reason may be because the provisions on the division of marital property are no
longer found in the section dedicated to rights and duties of spouses as it was in the Law of 1989.
As of now, the Matrimonial property system has its own section. This time, the Civil Code did
not make any change between the 1989 Law and its current version. For example, we can find the
exact same provision as Article 32 of the Law on Marriage and Family in Paragraph (1) of Article
974 of the Civil Code. It provides equal rights in the management and use of common property,
as well as the right to use, benefit and manage their own property.

The Civil Code added a provision on the surname of the married couple. There was no
provision on this matter in the Law of 1989, Cambodian people followed the customs, that is to
say, the woman kept her maiden name. Now, the Civil Code gives a choice to the husband and
wife to make an agreement to keep their maiden names or choose the surname of the other
spouse, whether it is the husband or the wife. It also added the duty for spouses to cohabitate,
cooperate and assist each other.

II. DIVORCE

1) Grounds for divorce

Law on Marriage and Family, Article 39 Civil Code, Article 978

× Infidelity

16
Dorine VAN DER KEUR, Legal and Gender Issues of Marriage and Divorce in Cambodia, Cambodia Law and Policy
Journal, Vol. 3, December 2014 http://cambodialpj.org/wp-content/uploads/2014/05/DCCAM_CLPJ_Dorine.pdf
17
Article 45, Constitution of Cambodia, 1993
 Desertion without a good reason and without Desertion without good cause
maintenance of and taking care of the child

× Disappearance for more than one year

Physical separation for more than one year Separation for more than one year
× Loss of matrimonial relationship with no
prospect of reconciliation
Cruelty and beatings, persecutions and ×
looking down on the other spouse of his/her
ancestry
Immoral behavior, bad conduct ×
Impotence of penis ×

Desertion and separation are two grounds for divorce the Civil Code decided to keep
from the Law of 1989. Immoral behavior or bad conduct have been reduced to infidelity, which is
more limited and less indefinite. The ground of loss of matrimonial relationship with no prospect
of reconciliation is voluntarily large enough to allow other reasons to file a divorce, such as the
former ground of immoral behavior. However, the Court has jurisdiction to dismiss a demand for
divorce falling under any of the above-mentioned grounds, if it would cause extreme hardship or
anguish upon the other spouse or their children. At the same time, the Court may also dismiss a
demand for divorce if the demand is made in bad faith because of the lack of cooperation of the
petitioner, showing that the request to file a divorce is not only based on the personal will of the
party

The Law on Marriage and Family first introduced a divorce by mutual consent, which
was later inserted in the Civil Code of 2007. Just like for the marriage, the lawmakers insisted on
making sure the divorce by mutual consent was done voluntarily and without coercion 18. The
Civil Code also tried to safeguard the consent of the parties by giving power to the court to
examine first their true desire to dissolve the matrimonial relationship 19.

The procedure for divorce has been largely simplified under the Civil Code. The party
who wish to file a divorce shall apply directly to the municipal of provincial court, or to the
Commune or Sangkat council at the place of residence according to Article 982. Before the
Commune council, the council may attempt conciliation during a period of 15 days after
receiving the petition. Should the conciliation be unsuccessful, the petition shall be sent
immediately to the Court. Under the Law on Marriage and Family, reconciliation was strongly
prioritized20. For example, Article 54 provided that if a complainant failed to appear before the
Court for reconciliation without justification or without rescheduling the hearing shall be
considered as withdrawing the complaint.

18
Article 58, Law on Marriage and Family, 1989
19
Article 979, Civil Code, 2007
20
KUONG Teilee, Development of Legal Norms on Marriage and Divorce in Cambodia – The Civil Code Between
Foreign Inputs and Local Growth, p.112-113 https://nagoya.repo.nii.ac.jp/records/22855#.Yihh0ThByUk
Procedure of reconciliation with the People’s Committee of the Commune or the Section

Special provision for pregnant women

Husband cannot request a divorce, but the wife can. Article 68 L1989

III. MARITAL PROPERTY

Article 32: right to use, obtain interests and manage the joint properties

Article 33

Article 34

Division of properties of spouses whose marriage has been pronounced to be void shall be
divided as the same manner as the case of a divorce Article 27

IV. FAMILY

1) Legitimate and illegitimate child

V. ADOPTION

VI. PARENTAL POWER