Introduction
In Vietnam’s civil law and marriage and family law system, accurately determining the legal status of adopted children and stepchildren is of pivotal importance in defining the scope of heirs. Although both categories may inherit in the capacity of “children” under the law, there are significant differences in the legal basis and conditions for the arising of their inheritance rights.1 While adopted children enjoy inheritance rights by default based on a lawfully registered adoptive relationship, the inheritance rights of stepchildren with respect to the estate of a stepfather or stepmother only arise when there exists an actual care and nurturing relationship akin to that of natural parent and child, as stipulated in Article 654 of the 2015 Civil Code.
However, judicial practice has given rise to debate: does long-term actual care and nurturing behaviour automatically constitute an adoptive parent-child relationship, or is it merely an objective manifestation of moral obligations within specific family structures? This question becomes even more complex in cases involving de facto adoptive relationships that arose before the issuance of administrative regulations governing the formal procedures for establishing adoption. When the adoptive relationship has not been formalised through administrative procedures, can it still be recognised and protected by law?
This study approaches the issue through an analysis of Judgment No. 108/2020/DS-PT of the High People’s Court in Da Nang, a typical case illustrating the tendency to equate the stepmother–stepchild relationship with an adoptive parent-child relationship in order to legitimise the division of an estate. Although legal commentaries have highlighted the essential differences between these two types of relationships, a gap remains in establishing specific evidentiary standards to clearly distinguish the constitutive elements of a de facto adoptive relationship in the absence of administrative recognition. In particular, no study has yet systematically analysed the criteria for assessing the subjective intent of the parties when establishing an adoptive relationship in such historically complex cases.
The article is structured as follows: Part 1 presents the details of the judgment and the court’s ruling, focusing on how the adjudicating body recognised the inheritance capacity of the parties. Part 2 analyses and identifies methodological errors in the evaluation of evidence and the determination of legal status, while clearly distinguishing between a lawful adoptive relationship and a stepmother–stepchild relationship. Part 3 comments on the systemic legal consequences of this confusion for family relationships and inheritance rights. Part 4 proposes a set of criteria consisting of two conditions to standardise the adjudication process for complex cases of de facto adoption.
Case Facts and Judicial Decision
The disputed estate in this case consists of the common property (house and land) located at No. 34 T1 Street, H1 City, with a total area of 1,704.5 m², which was created by Mr. Huỳnh T2 and Mrs. Trần Thị X.2
Mr. Huỳnh T2 and Mrs. Trần Thị X (married in 1922) were legally married but had no biological children together.3 In 1934, Mr. Huỳnh P, a biological nephew of Mr. T2 (son of Mr. T2’s sister), was taken in and raised by the couple as their adopted child from infancy.4 Mr. P did not possess any formal decision recognising the adoption issued by a competent state authority under current law. However, he holds household registration documents issued in 1958, 1965, and 1970 that record Mr. T2 and Mrs. X as his parents.5
In 1951, Mr. T2 married Mrs. Võ Thị Q1 (also known as Nguyễn Thị Q1). In 1952, Ms. Huỳnh Thị X was born as their biological child.6 Thereafter, Mrs. Q1 and Ms. X lived together with and provided care for both Mr. T2 and Mrs. Trần Thị X on the aforementioned property.7
Mr. T2 died in 1969, Mrs. Trần Thị X died in 1989, and Mrs. Q1 died in 2005.8 All three died intestate. The property was continuously managed and used by the surviving family members (Mr. Huỳnh P did not reside there). After Mrs. Q1’s death, Ms. Huỳnh Thị X initiated procedures to declare and receive the entire house and land as inheritance.9
Unable to reach agreement on the division of the property, Mr. Huỳnh P filed a lawsuit requesting the court to divide the estate left by Mr. Huỳnh T2 and Mrs. Trần Thị X.
A. The Court’s Reasoning
Since the decedents left no wills, both the first-instance and appellate courts applied the rules on statutory inheritance (intestate succession) to resolve the dispute, with the following key points.10
Regarding Mr. Huỳnh P’s legal status: Both levels of court recognised Mr. Huỳnh P as the lawful adopted child of Mr. Huỳnh T2 and Mrs. Trần Thị X, despite the existence of a separate blood relationship (as the son of Mr. T2’s sister). The court’s reasoning was based on the priority given to the documentary nature of old household registration records. The court held that the household registration documents from 1958 to 1970 constituted lawful, consistent, clear, and public evidence demonstrating the decedents’ intention during their lifetime to recognise Mr. P as their child.11
Regarding Ms. Huỳnh Thị X’s legal status: The appellate court recognised Ms. Huỳnh Thị X’s right to inherit from Mrs. Trần Thị X (her father’s first wife) in the capacity of a de facto adopted child.12 Although Ms. X had no documents whatsoever certifying an adoptive relationship with Ms. Trần Thị X, the court reasoned that the long-term cohabitation, care, and support between Ms. X and Ms. Trần Thị X was sufficient grounds to establish a de facto mother-child relationship. This, according to the court, ensured the protection of property rights for the person who had contributed labour to maintaining the estate.
Analysis
The adoptive parent-child relationship in Vietnam appeared very early, originating from traditional customs and practices. Later, this relationship was gradually recognised and regulated by law. From a legal perspective, adoption is a legal event that requires recognition by the competent state authority.13 Since the 1959 Law on Marriage and Family, the State began to stipulate the recognition of adoptive relationships through registration procedures at the competent state agency.14 Prior to the effective date of the 1959 Law on Marriage and Family, adoptive relationships were typically established according to custom without registration procedures. This created difficulties for courts in determining the legal basis when resolving disputes arising from adoptive relationships.
To remedy this situation, the 2010 Law on Adoption established a transitional mechanism in Article 50.15 Accordingly, for an adoptive relationship to have legal validity, the parties must complete registration procedures with the competent state authority.16 In cases where a child was adopted before January 1, 2011, and both the adoptive parents and the adopted child were still alive, registration had to be carried out between January 1, 2011, and December 31, 2015.17 After this deadline, if registration was not completed, the de facto adoptive relationship would not be recognised by law. However, this procedure could only be carried out if both parties to the adoptive relationship were still alive as of January 1, 2011.
A distinctive feature of Judgment No. 108/2020/DS-PT is that one party to the adoptive relationship (Ms. Trần Thị X) had passed away before January 1, 2011, making it impossible for the parties to complete the registration procedures as prescribed by the Law on Adoption.18 In such circumstances, in order to protect the legitimate rights and interests of the surviving party, the Court considered the possibility of recognising the de facto adoptive relationship.19 A de facto adopted child is understood as a person who has been taken in as a child, cared for, nurtured, and treated as a biological child despite the absence of blood ties and without having completed the legal adoption registration procedures.20 However, this relationship is only recognised by law when the adoption was established in good faith, with the voluntary consent of the biological parents, and with ensured care and nurturing for the adopted child.21
In the judgment under review, the court determined the existence of both a legally recognised adoptive relationship and a de facto adoptive relationship. However, the persuasiveness of these two findings shows a profound discrepancy in legal scientific terms.
First, the recognition of Mr. Huỳnh P’s inheritance capacity is reasonable in acknowledging the information in the household registration documents.
The first-instance and appellate courts’ recognition of Mr. Huỳnh P’s right to inherit in the first line of succession is well-founded.22 Although Mr. P and Mr. Huỳnh T2 had a natural blood relationship as uncle and nephew, objective evidence demonstrated an entirely distinct legal relationship:
In terms of household registration evidence: The continuous existence of household registration documents from the earlier period (1958, 1965, and 1970) recording Mr. T2 and Ms. X as “parents” constitutes valid proof of the existence of a lawful adoptive relationship.
In terms of real-life practice: The act of taking Mr. P in to raise him from infancy, combined with the public recognition by the clan and local community in accordance with custom, completed the objective elements of this relationship.
Therefore, Mr. T2’s act of raising Mr. P was not merely an expression of familial support between relatives (an uncle raising his nephew), but rather the exercise of parental rights and obligations of adoptive parents. The court’s application of Article 651 of the 2015 Civil Code to divide Mr. T2’s estate equally between Mr. Huỳnh P (adopted child) and Ms. Huỳnh X (biological child) is entirely correct.23
Second, regarding the recognition of Ms. Huỳnh Thị X’s status as a “de facto adopted child”: confusion between derivative obligations and the intention to establish a legal relationship.
In contrast to the case of Mr. Huỳnh P, the court’s finding that Ms. Huỳnh Thị X was a de facto adopted child of Ms. Trần Thị X contains serious shortcomings that undermine the fundamental principles of Marriage and Family Law.
Shortcoming No. 1: Violation of the principle of non-overlapping parental rights and obligations. When an adoptive relationship is established, it fundamentally results in the transfer of parental rights and obligations: biological parents cease their personal and property rights and obligations toward the child and transfer them entirely to the adoptive parents.24 In this case, Ms. Huỳnh X had both biological parents (Mr. Huỳnh T2 and Ms. Q1) who were alive, lived together, directly cared for and educated her, and never made any declaration or took any action indicating the relinquishment or transfer of their parental rights to Ms. Trần Thị X.
Confusion between actual cohabitation and the purpose of caregiving acts: Ms. Huỳnh X’s cohabitation with and care for Ms. Trần Thị X from 1952 to 1989 did not constitute an independent relationship established separately between the two individuals. This conduct must be viewed within the polygamous family structure of the old era: Ms. X lived with her biological father (Mr. T2) and biological mother, while Ms. Trần Thị X lived with her husband (Mr. T2). Therefore, the actual bond and caregiving between Ms. Huỳnh X and Ms. Trần Thị X were inherently in the nature of a stepmother–stepchild relationship, governed and adjusted by Article 79 of the 2014 Law on Marriage and Family. The caregiving was not aimed at establishing a mother-child relationship in place of Ms. Huỳnh X’s relationship with her biological mother (Ms. Q1).
Lack of expressed intention or desire to establish an adoptive relationship: Unlike the case of Mr. Huỳnh P, the case file completely lacks any documents, evidence, or public community recognition showing that Ms. Trần Thị X had the intention to treat Ms. X as her adopted child. The act of caregiving and support between a stepmother and stepchild is a common moral and social obligation; by itself, it cannot be inferred by the court as evidence of intent to establish a de facto adoptive relationship.
Consequences of the flawed reasoning: There was no adoptive relationship between Ms. Trần Thị X and Ms. Huỳnh X, but rather a stepmother–stepchild relationship. According to Article 654 of the 2015 Civil Code, a stepchild is entitled to inherit from a stepparent only when “there is a relationship of mutual care and support as between parent and child”.25 When applied to the facts of this case, given the actual process of mutual care and support, Ms. Huỳnh X still qualifies to stand in the first line of succession to Ms. Trần Thị X in her capacity as a stepchild who had a relationship of mutual care and support with her stepmother.
Thus, although the final outcome of the estate division remained unchanged (Ms. X and Mr. P both belonged to the first line of succession and received an equal statutory share), the court’s deliberate “formalisation” of the stepmother–stepchild relationship into a “de facto adoptive relationship” represents a strained legal construction that distorts the true legal nature of the parties’ status.
Comments
Although in this case the confusion between the legal status of a stepchild and an adopted child did not alter the outcome of the estate division among the parties, the erroneous determination of the legal relationship may lead to significant legal consequences for the rights and obligations of the subjects in the future, particularly inheritance rights and personal and property relations arising from family relationships. From a theoretical perspective, civil law recognises the distinct legal status of adopted children and stepchildren based on their differing nature.
First, regarding legal status within family relationships: The essence of the adoptive relationship is the establishment of a family relationship based on nurturing behaviour but possessing legal value equivalent to a family relationship established by blood ties. Under Article 24 of the 2010 Law on Adoption, from the moment of establishment, an adopted child automatically generates a system of horizontal and vertical relationships (siblings, grandparents, grandchildren, etc.) with all other members of the adoptive parents’ family,26 that is, a relationship with an “outward” and infinitely expansive character. In contrast, the relationship between a stepchild and a stepfather or stepmother under Article 79 of the 2014 Law on Marriage and Family is closed, internal, and strictly limited in scope. This relationship is confined to direct personal and property rights and obligations between the two parties and does not generate any legal consequences between the stepchild and the relatives of the stepfather or stepmother.
Second, regarding the conditions for the arising of statutory inheritance rights: The inheritance rights of an adopted child in the estate of the adoptive parents arise automatically as a direct consequence of their status as first-line heirs under Article 651 of the 2015 Civil Code. Conversely, the inheritance rights of a stepchild in the estate of a stepfather or stepmother do not arise automatically from the marriage of their biological parent; rather, they are strictly conditioned upon the necessary and sufficient requirement under Article 654 of the 2015 Civil Code: the existence of an actual care and nurturing relationship akin to that of parent and child must be proven.27
Applied to the present case, the Court’s error fundamentally altered the entire structure of family relationships surrounding the parties. By arbitrarily elevating Ms. Huỳnh Thị X’s status from that of a stepchild to a de facto adopted child of Ms. Trần Thị X, the appellate court effectively and unlawfully granted her an illegitimate “legal privilege.” As a recognised de facto adopted child, Ms. Huỳnh Thị X would not only inherit from her stepmother but could also automatically enter the second and third lines of succession among other relatives in Ms. Trần Thị X’s family. This is a dangerous consequence that far exceeds the limited scope of the stepmother–stepchild relationship as foreseen by Vietnamese legislation.
The Court’s recognition of Ms. Huỳnh Thị X as a de facto adopted child of Ms. Trần Thị X, based solely on their long-term cohabitation and mutual care, constitutes a subjective inference without sufficient basis. In legal scholarship, a de facto adoptive relationship is formed only when both objective elements (actual care and nurturing) and subjective elements (intent to establish the relationship) are present.28 The actual caregiving behaviour must be directed towards the sole purpose of establishing a parent-child status. If reliance is placed solely on the objective element of caregiving, the boundary between various family relationships (stepchild, adopted child, grandparents, aunts, uncles, nieces/nephews, or even persons who have provided support) would be completely blurred, leading to an excessive and arbitrary expansion of the category of “de facto adopted child” in inheritance disputes. The Law on Adoption itself reflects this position by requiring that a stepfather wishing to adopt his wife’s child or a stepmother wishing to adopt her husband’s child must express such intent through formal adoption registration procedures with the competent state authority.29 In this case, there was a complete absence of any such expression of intent between Ms. Trần Thị X and Ms. Huỳnh Thị X.
To objectively assess the true nature of the relationship between Ms. Huỳnh Thị X and Ms. Trần Thị X, the Court cannot separate the parties’ conduct from the historical and social context in which that relationship developed. The facts of the case reveal a specific cross-section of Vietnamese marital life in the 20th century: Mr. T2 married Ms. X (first wife) in 1922 and later entered into a marriage with Ms. Q1 (second wife) in 1951, a time before the 1959 Law on Marriage and Family officially applied the monogamy principle.30 Within this traditional polygamous family structure, Ms. X’s (biological daughter of Mr. T2 and Ms. Q1) prolonged caregiving and filial support towards Ms. Trần Thị X was not merely a voluntary moral obligation but an inevitable, institutionally determined consequence of the polygamous family model.
When a child is born and raised in a household where both the “senior mother” (first wife) and the biological mother are present, performing acts of filial piety, support, and care towards the father’s first wife was a mandatory social norm and a natural obligation derived from the father’s marital relationship. This objective behaviour was subordinate to the existing family structure and entirely distinct from any subjective intent to establish a mother-child relationship through adoption.
The High People’s Court in Da Nang’s use of modern legal reasoning, built upon the absolute foundation of the monogamous family model, to forcibly “formalise” this relationship into the category of “de facto adoption” represents a lack of historical legal sensitivity. It transforms a moral duty into a tool for the unlawful expansion of inheritance rights. By equating acts of filial piety within a polygamous family with the intent to adopt, the Court has inadvertently imposed ahistorical adjudicative standards, disregarding the true nature of the stepmother–stepchild relationship governed by Article 79 of the 2014 Law on Marriage and Family. This methodological error resulted in a theoretically forced ruling that converted a moral duty and derivative family obligation into an illegitimate basis for expanding statutory heirs, creating a harmful precedent for the adjudication of similar historical inheritance disputes.
Thus, in addition to actual caregiving behaviour, the intent of the parties to establish a parent-child relationship must also be considered. This intent is typically evidenced by ceremonial acts or public declarations within the clan or residential community regarding the adoption. However, when evaluating such manifestations, the genuine intent of the parties in performing adoption-related rituals must be examined. In Vietnamese culture, the custom of “adopting a child for spiritual purposes” exists, which is purely formal and aimed at dispelling bad luck, seeking peace, or “curing illness” for the child according to spiritual beliefs.31 Although these relationships may involve public ceremonies, the parties do not actually cohabit or establish genuine parent-child obligations. This demonstrates that even when external manifestations exist, ascertaining the true subjective intent remains the core condition.
From the perspective of positive law, Article 50 of the 2010 Law on Adoption established an “administrative filter” through the mandatory transitional registration period from January 1, 2011, to December 31, 2015. Ms. Trần Thị X’s death prior to this period created a situation of force majeure, preventing the parties from formalising the relationship procedurally. However, procedural impossibility does not entitle the Court to lower the standard of proof. On the contrary, in situations lacking administrative recognition due to the death of one party, the Court must exercise even greater caution and stricter scrutiny when evaluating evidence of “genuine adoptive intent” through other forms of expression in the past. The Court’s lenient recognition of adopted-child status based on behaviours typical of an ordinary stepmother–stepchild relationship has undermined the uniformity and accuracy of legal application, leaving a detrimental precedent for future adjudication of marriage and family disputes.
Recommendations
Currently, the resolution of civil disputes involving cases of “de facto adoption established prior to the effective date of the 2010 Law on Adoption but not registered, where one party died during the administrative transitional period” faces a lack of uniform guidance. As a result, adjudication by local courts often falls into a subjective and lenient trend of recognising legal status based purely on the duration of cohabitation and caregiving. This trend seriously affects the interests of other heirs.
To address the legislative gap and prevent the arbitrary expansion of the scope of first-line heirs, the Judicial Council of the Supreme People’s Court should issue a guiding Resolution or develop precedents to standardise adjudication. The author proposes that adjudicating bodies, when handling such cases, must examine the following two criteria for establishing a de facto adoptive relationship:
A. First criterion: examination of the nature of the caregiving and nurturing acts
The court must analyse and clarify the true nature of the prolonged caregiving and nurturing behaviour. This behaviour in itself is only a necessary condition, not a sufficient one, to establish a new legal status. If the caregiving and nurturing acts can be reasonably explained by an existing legal status or moral obligation, such as the relationship between a stepmother/stepfather and stepchild under Article 79 of the 2014 Law on Marriage and Family, or the mutual support obligations among relatives across generations within the same clan, then the court must immediately exclude the possibility of inferring a de facto adoptive relationship.
B. Second criterion: whether the parties demonstrated voluntary intent to establish a parent-child relationship in replacement of the biological parent-child relationship
When the burden of proof lies with the party requesting recognition of de facto adopted child status, the court must apply a strict standard of proof to the subjective intent element of the parties in the adoptive relationship. The intent to establish a parent-child relationship must have been expressed publicly, transparently, and unambiguously in the past through highly reliable sources of evidence, rather than relying solely on unilateral statements. Legally valid evidence must necessarily include: (1) old household registration and administrative documents: key population declarations across different periods, personal records, birth certificates, school records, or other administrative documents that consistently and clearly record the status of “parent” and “child” without being the result of isolated clerical errors; and (2) evidence of self-determined intent: letters, partially incomplete wills that clearly express the intent to treat the party as an adopted child, or minutes of family or clan meetings with confirmation from representatives of the residential community recognising the public adoption. The content of such evidence must demonstrate the intent and desire to transfer the exercise of parental rights and obligations from the biological parents to the adoptive parents.
Conclusion
The analysis of Judgment No. 108/2020/DS-PT of the High People’s Court in Da Nang provides a clear answer to the central research question: prolonged actual caregiving and nurturing behaviour does not automatically constitute an adoptive parent-child relationship. It is merely an objective manifestation that can be explained by various other family relationships, including moral obligations within the traditional polygamous family structure.
The study has identified the following key findings: first, the Court’s recognition of Mr. Huỳnh P’s inheritance capacity is well-founded in law, based on a consistent system of household registration documents and public recognition by the community. Second, in contrast, the appellate court’s recognition of Ms. Huỳnh Thị X as a “de facto adopted child” of Ms. Trần Thị X reflects a serious confusion between two distinct legal statuses. While an adoptive relationship requires the full transfer of parental rights and obligations from biological parents to adoptive parents, accompanied by clear subjective intent of the parties, the stepmother–stepchild relationship is a closed, internal relationship arising from marriage and governed by the mutual caregiving obligations under Article 79 of the 2014 Law on Marriage and Family.
The Court’s methodological error stems from equating acts of filial piety and support within the context of a polygamous family, which constitute an institutionalised moral duty, with the intent to establish an adoptive relationship. As a result, Ms. Huỳnh Thị X was granted a “legal privilege” that far exceeds the scope of the stepmother–stepchild relationship, potentially affecting the second and third lines of succession among other relatives in Ms. Trần Thị X’s family. Although the outcome of the estate division in this specific case remained unchanged, this dangerous precedent poses a challenge to the accuracy and uniformity of Vietnam’s inheritance law system.
To address the current legislative gap and prevent the arbitrary expansion of the category of “de facto adopted child” in inheritance disputes, the study proposes the application of a two-condition criterion: (1) examination of the nature of the caregiving and nurturing acts to exclude relationships that already have a legal basis, such as stepmother–stepchild or ordinary family obligations; and (2) requiring objective, reliable evidence of the parties’ voluntary intent to establish a parent-child relationship as a substitute for the blood relationship. If this set of criteria is uniformly guided by the Supreme People’s Court through a Resolution or precedents, it will ensure a balance between protecting the legitimate interests of those who have provided care and maintaining the rigour and accuracy of inheritance law, while respecting the historical context and local customs in the resolution of similar historical inheritance-related civil disputes.
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Footnotes
1. Nguyễn Phương Lan, The Legal Nature of Adoption under Vietnamese Law, No. 3 Journal of Legal Studies 30–34 (2004).
2. High People’s Ct. at Da Nang, Civil Appellate Judgment No. 108/2020/DS-PT (Viet.) (June 16, 2020), https://congbobanan.toaan.gov.vn/2ta509225t1cvn/chi-tiet-ban-an.
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.; Civil Code, No. 91/2015/QH13 (Viet.) (Nov. 24, 2015).
11. High People’s Ct. at Da Nang, Judgment No. 108/2020/DS-PT, supra note 2.
12. Id.
13. Law on Adoption, No. 52/2010/QH12 (Viet.) (June 17, 2010).
14. Law on Marriage and Family, No. 2/SL (Viet.) (Dec. 29, 1959).
15. Law on Adoption, No. 52/2010/QH12 (Viet.) (June 17, 2010) art. 50.
16. Id. art. 50.
17. Id.
18. High People’s Ct. at Da Nang, Judgment No. 108/2020/DS-PT, supra note 2.
19. Id.
20. Nguyễn Phương Lan, De Facto Adoption: Current Situation and Proposed Solutions, J. Democracy & L. (Special Issue on Adoption Law, 2009).
21. High People’s Ct. at Da Nang, Judgment No. 108/2020/DS-PT, supra note 2.
22. Id.
23. Civil Code, No. 91/2015/QH13 (Viet.) (Nov. 24, 2015) art. 651.
24. Law on Adoption, No. 52/2010/QH12 (Viet.) (June 17, 2010).
25. Civil Code, No. 91/2015/QH13 (Viet.) (Nov. 24, 2015) art. 654.
26. Law on Adoption, No. 52/2010/QH12 (Viet.) (June 17, 2010) art. 24.
27. Civil Code, No. 91/2015/QH13 (Viet.) (Nov. 24, 2015) art. 654.
28. Nguyễn Thế Đức Tâm & Lê Bảo Khanh, Recognition of De Facto Adoption: From Legislation to Judicial Practice, People’s Ct. J. (June 24, 2021).
29. Law on Adoption, No. 52/2010/QH12 (Viet.) (June 17, 2010) arts. 14, 22.
30. Law on Marriage and Family, No. 2/SL (Viet.) (Dec. 29, 1959).
31. Trang Tuệ, The Adoption Custom of the Thai People in Tri Le, Nghe An Ctr. for Soc. Scis. & Humanities (Mar. 22, 2021); The Unique Adoption Custom of the San Chi People, Quang Ninh Online Newspaper (July 15, 2025), https://chuyendoiso.baoquangninh.vn/doc-dao-tuc-nhan-con-nuoi-cua-nguoi-san-chi-3385249.html.