Nagoya University Asian Law Bulletin Vol.2 (September 2016)[Research Notes]

Development of Legal Norms on Marriage and Divorce in Cambodia– The Civil Code Between Foreign Inputs and Local Growth (2)*KUONG Teilee
Abstract
This second part of the research focuses on the development of law on divorce inCambodia, aiming at identifying the continuation and changes in the legislative developmentof Cambodia in regulating divorce and post-divorce relationship. It starts with a brief
overview of the legislative development from the early 20th century up till the latest
codification of the 2007 Civil Code. Along this line of historical narratives, the research thenexamines two important elements in the legal effects of divorce, namely division of property
and child custody. The final section concludes mainly for the contents of this second part, butwith considerable reflection of the concluding remarks made in the first part of the research
published in the first volume of this Bulletin.

Contents
Part 2 – Divorce
Introduction
Ⅰ. Development of Divorce Law and Procedure in Cambodia
1. The Old Civil Code and the 1989 Law
2. The New Civil Code of the 21st Century
Ⅱ. Legal Effects of Divorce
1. Division of Property
2. Child Custody, Child Interests and Parental PowerThe Old Civil CodeThe 1989 Family Law
The New Civil Code
General Conclusions* Part 1 of this research about marriage appears in the first volume of the ALB. Since the old Civil Codehas not been translated into English elsewhere this paper will produce the English translation of therelevant provisions in the footnotes as may be deemed necessary by the author. None of the translation istherefore official. The unofficial English translation of the 1989 Law on Family and Marriage wasavailable from different sources. This research mainly uses the version annexed to the textbook by
Lindsay Harris & Phyllis Cox, 1996. Since the Law has been repealed and the textbook is no longer
widely available, some relevant provisions are reproduced in the footnote for reference, with occasional
modifications as may be deemed necessary by the author.
 Associate Professor, Centre for Asian Legal Exchange, Nagoya University.

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)Part 2 – Divorce
Introduction
Divorce as a legal concept to refer to termination of the contractual relationship boundby marriage between a husband and a wife in Cambodia, based on legally stipulated
conditions and procedures, was elaborated in detail by the old Civil Code.1 Chapter 3 ofTitle 4 in the First Book on Persons2 was exclusively on the issue of divorce, therelevant court procedure and the effects. Since some features of the old Civil Coderemain influential in the current Cambodian law on divorce, a brief introduction of thesefeatures and their subsequent development in the later 20th century will be helpful for abetter understanding of the current law and procedure on divorce in Cambodia.

Ⅰ. Development of Divorce Law and Procedure in Cambodia
1. The Old Civil Code and the 1989 Law
Articles 204 and 210 of the old Civil Code gave the exclusive authority to the court at
the place of residence of the defendant to pass judgment on a petition for divorce basedon grounds provided by law.3 These grounds for divorce were then mainly fault-based.
They included adultery, unjustifiable absence from home, failure to fulfill one’s
obligation as the husband to feed the wife and children, acts of violence, and expulsion

1

In 1961, Jean Imbert wrote that divorce in Cambodia before 1907 could be recognized by the heads of
local administrative bodies, starting with the disctrict chief, who would attempt a reconciliation and, if
this attempt failed, accord a divorce. The husband then would have to deliver a letter of divorce to hiswife which may or may not be authenticated by a public authority. Although in his 1961 paper, Jean
Imbert reported existence of divorce during the “modern” period (defined to be from 1593-1907) of
Cambodia, he mainly cited a discovery reported by A. Leclere in 1890 of a document signed by theGovernor of the Province of Kampot to authenticate a letter of divorce made by a man called Ouk to his
wife, Keo. The document was signed on February 1, 1889, before the enactment of the old Civil Code but
well after Cambodia was colonized by the France. It is not clear whether the same practice had takenplace before the arrival of the colonial administration in Cambodia. See Jean Imbert, “Histoire desInstitutions Khmeres” Annales de la Faculte de Droit de Phnom Penh, vol.II, Phnom Penh, 1961, p.101
and footnote # 12..
2
Articles of the old Civil Code was arranged into three books with each consisting of several titles,
chapters, sections, clauses and then sub-headings.
3
Article 204: “Husband and wife may get divorced whenever the court judges in favor of the divorce ongrounds stated by law.”
Article 210: “The application for divorce, on whatever grounds, shall be filed with the court at the placeof residence of the defendant.”

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from home by the husband. Although two articles, 208(4) and 209, appeared to provide
for non-fault-based and mutually consented divorces,4 they were in fact structured to fit
into the category of a fault-based ground for divorce. Article 208(4) provided for eitherof the parties to apply for divorce if both parties had not been living together for morethan one year. Article 209 provided for consented divorce, but the husband had to be
assumedly on the wrong side and had to pay for all losses.
The reason for this strong tendency to adopt fault-based ground for divorce inCambodia during the old days was presumably due to the legally defined differentiationof obligations between husband and wife in the family and the social status of married
women at that time. Article 188 of the Code defined the role of husband in the family as
the caretaker for his wives, whereas Article 189 required the wives to submit to theauthority of the husband and to be respectful, honest and nice to the husband.5 A
married woman was not expected to enter into any contract without explicit permission
from her husband, neither was she allowed to file complaint to the court, except for
divorce petition involving herself.6 Taking into account the restricted legal capacity of amarried woman, one may argue that the fault-based approach adopted by Article 209
even for the case of mutually consented divorce was substantively necessary foreconomic security of the divorced woman.7 Although a divorced adult woman would
Article 208: “Grounds on which a husband or a wife may file for a divorce are: (1) that the complainant
has been beaten, kicked, excessively abused, maltreated, reprimanded and seriously disdained by the
spouse or that an ancestor of the complainant has received these treatments severely; (2) that the spouse
was sentenced for commission of a crime; (3) that the spouse was bad-mannered, indecent, immoral… (4)separation for more than a year.”
Article 209: “Husband and wife may also divorce by mutual consent. But in this case, the husband shallbe deemed to be at fault and be charged with the loss.”
5
Article 188: “The husband shall support all of his wives.”
Article 189: “All wives shall obey; be submissive, honest and loyal to the husband.” Article 213 of theFrench Civil Code, before the amendment laws of 1938 and 1942, also provided for the “dominance ofthe husband” in a family relationship. However, the formula was simpler than the old Cambodian Code. It
states that “The husband must protect his wife, the wife obeys her husband.” See Le Code civil francais –Evolution des textes depuis 1804, Dalloz, Paris, 2000, p.86; and Jean-Louis Halperin, The French Civil
Code, Translated by Tony Weir, University College London, 2006, p.21.
6
Article 195: “The wives may file lawsuit with the court or enter into contracts only if the husband so
permits.”
Article 196: “The husband may authorize his wives to do everything by themselves.”
Art.211: “A wife may apply for divorce with the husband without having to acquire the permission fromthe husband.”7
Prior to 1938, Article 215 of the French Civil Code contained a provision similar to that of Article 189of the old Cambodian Code. prohibiting the wife to file complaint to the court without authorization ofher husband. But the logic of the French provision might not necessary be the same as the Cambodian one
4110

Development of Legal Norms on Marriage and Divorce in Cambodia (2)have full legal capacity as a free person, 8 her restricted legal capacity before thedivorce would logically require her to start from scratch to sustain herself and perhaps
the children under her care at the moment the divorce became definite. The best solution
would therefore be the introduction of a fault-based presumption in a consented divorce,so that the legally capable husband would have to bear the loss in the interest of the
post-divorce livelihood of the divorced wife and children under her care. The loss
would include division of the common property and, if the divided portion of common
property alone was not sufficient, provision of alimony to the divorced wife.9 However,the divorced woman would be deprived of these entitlement and supports if the divorce
was a result of her commission of adultery. She would also have to return all gifts which
she had received from her husband and the parents of the husband at the time ofengagement and wedding ceremony.10 The alimony once provided, would terminate or
become no longer due if the divorced wife remarried, became a concubine of somebody
else or had bad behaviours.11
Another important feature of the old Civil Code is the pre-trial reconciliation process indivorce cases. All divorce cases were supposed to be reconciled by the court at least one
time before being submitted for hearing. Article 214 of the Code required the presidentof the court to summon the complainant and convince him/her to drop the case as may
be appropriate.12 If the complainant insisted on divorcing, the president of the courtin the early 20th century. Halperin suggested that the French Code Civil of that time treated the wife as“incapable not merely out of respect for the husband but also because of the inexperience of the weakersex”. Jean-Louis Halperin, The French Civil Code, Translated by Tony Weir, University College London,
2006, p.21. See also Le Code civil francais – Evolution des textes depuis 1804, Dalloz, Paris, 2000, p.87.
8
According to Morice, a divorced woman would have full capacity and not fall back to the guardianshipof her parents. But should she remarry, she would be subjected to the same condition required of an adult
girl, as if she had never been married before.
9
For more details of the legal division of properties between husband and wife during a divorce and thedifferent legal problems facing the first and the subsequent wives in the case of divorce under the old
Civil Code, see Jean Morice, “Le Marriage et le Statut Familial de la Femme au Cambodge” Annales dela Faculte de Droit et des Sciences Economiques de Phnom Penh, vol.IV, 1962, pp.166-170.
10
Article 253: “But if the judgment for divorce was a result of the wife’s adultery, the wife may take only
her personal property received before the marriage or property that she received as heritance, will or
testamentary gift and clothes. Property acquired together with the spouse during marriage shall go to thehusband. In addition, the wife shall return all gifts which were presented to her by the husband or his
parents at the time of engagement or wedding”.
11
Article 259 “The alimony shall be terminated and no longer due if the divorced wife, of whatever
legitimate ranks, becomes remarried, lives in concubinage or has improper and bad behaviours”.
See also Jean Imbert, “Histoire des Institutions Khmeres” Annales de la Faculte de Droit de Phnom Penh,
vol.II, Phnom Penh, 1961, p.177.
12
Article 214: “The president shall summon the complainant, enlighten, advise and soothe him/her as the111

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would then call in the couple and try to reconcile between them.13
Although implementation of the old Civil Code was terminated during the Khmer
Rouge period (1975-1978), the socialist regime that ruled after the fall of the Khmer
Rouge regime retrieved these practices with some modifications. The practice might
have helped to lessen the burden of the court in conducting trials.14 In addition, it also
introduced into the divorce procedure the roles of local communities in reconciliation.
Article 42 of the 1989 Law on Marriage and the Family required the complaining party
to file his/her divorce petition with the “People’s Provincial or Municipal Court or to thePeople’s Committee of the Commune or the Sangkat in whose jurisdiction the defendantresides”.15 The provision on the role of local People’s Committee of the Commune toreconcile a potential divorce might have been a codification of the actual practice
introduced by the administration in the 1980s after the fall of the Khmer Rouge.16
Apart from this change in the initial stage of reconciliation and some other very limited
rewording, the divorce procedure under this 1989 Law was mostly similar to therelevant provisions of the old Civil Code.
Both the old Civil Code and the 1989 Law indicated a strong Cambodian preference forreconciliation and persuasion against divorce based on court judgment, unless the willof the parties was so strong that it could not be reversed by reconciliation. 17 They
limited this reconciliation attempt exclusively to the initial stage of the court procedure.
There was no particular provision to allow for conduct of reconciliation after the court
hearing had started. But the 1989 Law contained provisions to allow the court to pass apresident may deem appropriate in order to convince him/her to drop the application, except forcircumstances where the president considers that the application for divorce is based on a very serious
ground.”13
Article 215: “If the complainant insists on divorce, the president shall summon the husband and thewife to the court within 15 days for reconciliation, in order that a reconciliation may be realized.”
Article 217: “If a reconciliation fails, the president of the court may order the parties to conciliate one
more time.”
14
This is circumstantially apparent given the fact that
15
A Sangkat is a ward equivalent to a commune. The former is a sub-administrative jurisdiction under amunicipality whereas the latter under a province.
16
It was reported that in the 1980s, a divorce complaint could not be filed directly to the court but had tobe submitted to the “People’s Committee” of the commune or Sangkat first. See Lindsay Harris & Phyllis
Cox, Cambodian Marriage and Family Law, the Cambodian Legal Textbook Series prepared by theCommunity Legal Education Center, 1996.
17
See for example Articles 214, 215 and 217 of the old Civil Code cited above.

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)judgment of dismissal if the complainant failed to show up at the hearing without
justification or to submit any request for rescheduling the hearing.18 The parties might
therefore use this provision to reunite if they decided during the course of the procedure
to reconcile and stop pursuing the case. This was quite different from the old Civil Code,which had another provision to make sure that conciliation between the parties, albeit
not facilitated by the court, would be recognized at any time during the course of theprocedure, including at the appellate phase, whenever the parties decided to reunite andlive together again.19
However, the most remarkable difference between these two laws existed at the legal
grounds for fault-based divorce. The 1989 Law revised some of the grounds stipulated
in the old Civil Code to remove all relevancy to the polygamist value of the pre-socialist
society and to take into greater account the legal equality between husband and wife. It
removed the unequal provisions defining husband’s and wife’s faulty absence fromhome at night time;20 the provision on violence committed by a subsequent wife against
the first wife;21 the failure of the husband to feed the family; 22 and the act of the

Article 54 of the 1989 Law on Marriage and Family: “A complainant who has properly received aninvitation issued by the People’s Court, and fails to appear before the People’s Court without an
explanation for the absence or without requesting an adjournment shall be considered as withdrawing thecomplaint. In such case, a dismissal order shall be entered by the court.”
19
Article 238 of the old Civil Code: “If the couple reach a reconciliation between themselves and return
to live together again, the divorce complaint shall terminate at that point, with no regard to the level
where the litigation has reached.” Although Article 236 the old Civil Code also contained provisions very
similar to those of Article 54 of the 1989 Law, the latter does not have any provision similar to thecontents of Article 238 of the former.
20
Article 206 of the old Civil Code contained one provision on adultery committed by the wife andanother provision on the wife’s unjustified absence from home for one night, as grounds for the husband
to file for a divorce. On the contrary, there was no provision on the husband’s commission of adultery as alegal ground for the wife’s petition for divorce, and a husband’s unjustified absence from home could be acause for his wife’s filing for divorce only if the absence had lasted for 3 months and the husband had notprovided food or supports for the wife and their children. These provisions were not incorporated into the1989 Law. Compare the provisions of Article 206 with those of Article 207:
Article 206: “The husband may apply for a divorce on the following grounds: (1) that the wife committed
adultery; (2) that the wife stayed away from home for one night without appropriate justification; (3)that the wife beat… and kicked the first wife causing the latter to suffer from wounds and scars or
maltreated, scolded and looked down on the first wife.”
Article 207: “The wife may apply for a divorce on the following grounds: (1) that the husband has not fed,
supported and taken care of the wife, the child in accordance with the obligations of a husband; (2)that the husband has deserted the residence for more than 3 months without reasonable justification
and without having provided food and cares to the wife and the child; (3) that the husband expelled
the wife from the residence without reasonable ground.”21
Article 206(3) of the old Civil Code.
22
Article 207(1) of the old Civil Code.
18

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Nagoya University Asian Law Bulletin Vol.2 (September 2016)husband to expel his wife from the domicile, 23 etc., from the list of faulty acts
conductive to a divorce. The 1989 Law defined the grounds for non-consented divorce
into five simpler elements, namely desertion without a good reason and withoutmaintenance of and taking care of the child; cruelty and beatings, persecutions andlooking down on the other spouse or his/her ancestry; immoral behavior, bad conduct;
impotence of penis; and, physical separation for more than one year.24 The fifth groundfor divorce in this Law could be categorized as different from the other four andindicated an apparently no-fault-based ground for divorce.25
Moreover, the 1989 Law also emphasized on the importance of the husband’s
participation in the parental responsibility for childbirth and set a limit to his right todivorce at the time of the wife’s pregnancy. The husband only had the right to divorce
his wife one year after child delivery, but the wife was not subjected to this limitation if
she chose to divorce during her pregnancy.26 This provision logically made good sensein the context of rebuilding Cambodian society in the 1980s, soon after the destructions
by the Khmer Rouge had left many families poor and in dire need of manpower to workin the farm and take care of the children.

2. The New Civil Code of the 21st Century
The new Civil Code of 2007 adopts the legacy of 1989 Law on the definition of grounds
for divorce to the extent that it takes into account the liberal approach towards equality
between man and woman, but expands the opportunity for each party in a potential
divorce to justify the decision to divorce by presenting his/her unique circumstance to23

Article 207(3) of the old Civil Code.
Article 39 of the 1989 Law on Marriage and Family: “A husband or wife may file a complaint for
divorce if there are enough grounds which indicate that he or she cannot continue the conjugal
cohabitation. The grounds for divorce are: (1) desertion without a good reason and without maintenanceof and taking care of the child; (2) cruelty and beatings, persecutions and looking down on the otherspouse or his or her ancestry; (3) immoral behavior, bad conduct; (4) impotence of penis; and (5) physicalseparation for more than one year.”25
See Lindsay Harris and Phyllis Cox, Cambodian Marriage and Family Law, Cambodian Legal
Textbook Series, published by the Community Legal Education Center, University of San Francisco
School of Law, Cambodian Law and Democracy Project, 1996, pp.60-61.
26
Article 68 of the 1989 Law on Marriage and Family: “If a wife is pregnant, a husband may not beallowed to request divorce until one year after she has delivered the child.
The above condition shall not apply to women. A woman may request divorce while she is pregnant.”(modification in italics by the author)
24

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)the court and let the court evaluate the validity or appropriateness of the presented
ground(s) at its discretion. In addition to four general grounds for potential divorce,
including infidelity, unjustified desertion, disappearance of the spouse for more than one
year and separate living for more than one year against the objective of the marriage, afifth element is added to allow for other possible circumstances to fit in by generally
stipulating that a suit for divorce can be brought “if matrimonial relationship hasotherwise broken down and there is no prospect of reconciliation”.27
However, these grounds do not exempt the complainant from substantial scrutiny by the
court before judging in favor of a divorce. Paragraphs 2 and 3 of Article 978 confer tothe court the mandate to examine whether the divorce would result in extreme poverty
and difficulty in the livelihood of the other spouse or the children or intolerable
sufferings. The court may therefore dismiss the request for divorce by taking into
consideration all relevant circumstances. 28 With particular regard to examining thesituation of separate living and the fifth element mentioned above, the court may also
dismiss the request for divorce if it finds that the request was based on bad faith as thecomplainant has seriously neglected to cooperate with or assist the other spouse.29
These provisions may be an effective means of enabling the court to strike a balance
between granting a divorce based on the personal will of the party and ensuring the due
exercise of his/her parental and other related responsibility in a fragile marital
relationship.
The 2007 Civil Code also contains one subsection on procedure for initiating a formal
divorce. The procedure is now much simpler than the previous ones under the old Civil
Article 978(1)(e) of the 2007 Civil Code. The whole Article 978 states “(1) Husband or wife can bringa suit for divorce only in the following cases: a) If the other spouse has committed an act of infidelity;b) If he or she has been deserted without good reason by the other spouse; c) If it has been unknown for ayear or more whether the other spouse is alive or dead; d) If the other spouse has been living apartcontrary to the spirit of marriage for one year or more continuously; or e) If the matrimonial relationshiphas otherwise broken down and there is no prospect of reconciliation.
(2) Even account of all the circumstances, may dismiss [with prejudice] a demand for divorce if divorce
would cause extreme hardship or anguish to the other spouse or the children.
(3) Even where the grounds described in item (d) or (e) of paragraph (1) exist, the court may in its
discretion dismiss [with prejudice] a demand for divorce if it finds that the demand is in bad faith because
the demandant has seriously neglected to cooperate with and assist the other spouse.
28
Article 978(2) of the 2007 Civil Code.
29
Article 978(3) of the 2007 Civil Code.
27

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Code and the 1989 Law. A request for divorce may be filed directly to the municipal orprovincial court or to the commune council at the place of residence. 30 The commune
council may attempt to convince the parties to reconcile within 15 days of the complaint.
If the attempt fails, a divorce complaint is thereby assumed to exist and the commune
council must forward that complaint to the court immediately. 31 Unlike the previous
laws, the new Civil Code does not require the court to prioritize reconciliation in
addressing a divorce complaint. However, the court may still attempt to reconcile theparties despite the strong desire for divorce by one of them.32 If this attempt fails, thecourt must try the case and render a judgment.33

Ⅱ. Legal Effects of Divorce
1. Division of Property
Division of property as a result of divorce in the new Civil Code is quite a deviationfrom the previous laws in two ways. First, the marketization process in the 1990s has
enabled the parties in a divorce dispute to increase their say in how the property is to be
divided. The court will intervene if the parties could not discuss with each other on how
to divide their property. The court may decide on the details of the division based onsome rules and principles. The Civil Code contains only one single article to set down acouple of general rules and principles for the court to observe when deciding on thedispute related to division of property.34 Second, division of property under the 2007
Civil Code follows the 1989 Law in ensuring better equality between the two parties
based on general rules and principles governing the division of property. But the new
Civil Code gives more discretion to the court in determining the final portions to begiven to each of the parties, whereas mandatory post-divorce spousal support or
alimony stipulated in the section on “effects of divorce” under the two previous laws35
30

Article 982(1) and (2) of the 2007 Civil Code.
Article 982(2) of the 2007 Civil Code.
32
Article 984(1) of the 2007 Civil Code.
33
Article 984(2) of the 2007 Civil Code.
34
Article 980 of the 2007 Civil Code.
35
Articles 256 of the old Civil Code: “The wives may receive alimony only if the divorce is not causedby their own fault”.
Article 258 of the old Civil Code: “In case the divided common property may not support her livelihood,the first wife shall receive alimony if the divorce is not caused by her fault”.
31

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)no longer exists in the provisions on divorce under the 2007 Civil Code.
Article 980 of the 2007 Civil Code adopts two approaches to the division of property at
divorce, namely by agreement of the parties and by the decision of the court. In theabsence of an agreement of the parties, the fair division of property will be based on
categorization of the property and some factual circumstances. Property for this purpose
will be categorized as separate and common properties. Separate property is defined as(1) property held by a spouse premaritally; (2) gift, inherited property or testamentary
gift acquired by a spouse during marriage; and, (3) property obtained as theconsideration for items mentioned in (1) and (2) above.36 Upon divorce, each spousewill retain ownership over his/her separate property.37 Common property is defined as
property earned by both spouses or by either of them during the marriage, except for theproperty mentioned in sub-categories (2) and (3) mentioned above.38 Each spouse isentitled to one half of the common property, in addition to the portion of separate
property. 39 But this entitlement is not irrespective of some other necessary
considerations. In some special cases and upon request by one of the spouses, the court
may decide on the division of common property by taking into account various
circumstances; such as portions contributed by each of the spouses, contributions byeach of the spouses to the acquisition, maintenance and increase of the property, theperiod of the marriage, the living standard during the marriage, the age, mental andArticle 259 of the old Civil Code: “The alimony shall be terminated and no longer due when the divorced
wife, in whatever legitimate status she used to be, is remarried, has a lover or has bad andinappropriate manner.”
Article 76 of the 1989 Law: In case of a divorce where a party is not at fault and is in need, he/she may
request the other party to provide alimony. The latter party shall support the party in need according
to his or her abilities.
The amount of alimony shall be determined according to the agreement between both parties.
In the event there is no agreement, alimony shall be determined by the People’s Court. If theparty who is entitled to receive alimony remarry, such party may no longer receive alimony.”
Article 77 of the 1989 Law: “The People’s Provincial or Municipal Court may change, increase or
decrease the amount of alimony if there is a request of any party. The increasing or decreasing
alimony shall be made according to the abilities of the party paying alimony and according to theparty in need who is entitled to alimony. Alimony may be in money or properties.”
Article 78 of the 1989 Law: “Failure to pay alimony as provided above shall be considered as a crime andshall be punishable according to existing laws if there is sufficient evidence proving that the person
who is bound to pay alimony is dishonest.”
36
Article 972 of the 2007 Civil Code.
37
Article 980(2)(a) of the 2007 Civil Code.
38
Article 973 of the 2007 Civil Code.
39
Article 980(2)(b) of the 2007 Civil Code.

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physical condition of each spouse, the occupation, income and earning capacity of each
spouse, the interests of the children, etc.40 Housework is considered to have the samevalue as work outside the house.41

2. Child Custody, Child Interests and Parental PowerThe Old Civil CodeThe old Civil Code provided for two methods to decide child custody as a result ofdivorce, either an agreement between the divorcing couple or a court judgment. If thecouple failed to reach an agreement, the court would pass a judgment on child custodyby enabling the mother to keep children under 5 years old, unless there existed any
reason to decide otherwise.42 For children older than five, the daughter had to stay withthe mother and the son had to stay with the father.43 The child would only have theright to choose whether to stay with the father or the mother after he/she reached the ageof 16, unless there existed any reason to decide otherwise.44
Whereas the old Civil Code seemed to adopt a very clear-cut method for the court todecide on physical custodial questions, it contained no provision on the right tovisitation and the requirement for the other parent to remain obliged to participate inmaking decisions about the future of the child. It only required the other parent to help
feed, help take care of the child, and help pay for the child’s education and study, in
accordance with his/her resources.45
Parental power under the old Civil Code was defined to be the rights and authority
which the parent(s) could legally exercise on the body and property of the child. It
40

Article 980(2)(b) of he 2007 Civil Code.
Article 980(3) of the 2007 Civil Code.
42
Article 248 of the old Civil Code: “If the father and the mother cannot agree on the raising of andcaring for the child, the judge shall make the mother maintain small child under the age of 5, unless there
is any ground for objection. When the children pass the age of 5, the daughter shall stay with the motherand the boy shall stay with the father.”43
Article 248 of the old Civil Code.
44
Article 249 of the old Civil Code: “When a child reaches the age of 16, unless there is any ground for
objection, the child may stay with the father or the mother, depending on his/her own voluntary decision.”
45
Article 247 of the old Civil Code: “The father or the mother whom the judgment does not authorize tomaintain the child shall help raise, support and maintain, pay for the education and studies of the child,according to his or her resources.”41118

Development of Legal Norms on Marriage and Divorce in Cambodia (2)consisted of the right to detain, the right to correct/punish the child46 and the right toadminister the child’s property.47 Inside the family, these rights and authority stayedsolely with the father.48 The mother could be given these rights only when the father
died or lost the authority as the result of a court judgment or had restricted legal
capacity.49 In case of a divorce, the mother would have parental power only over thechild or children whom she was allowed to keep with her. 50 Logically constructed, thisprovision opened up the possibility for the divorced father to continue his parental
rights even over the child who had been transferred to the care of the mother.

The 1989 Family Law
The 1989 Family Law reproduced the whole wordings of Article 246 of the old Civil
Code in its Article 72, requiring a divorce judgment to decide on the issue of parental
power and post-custodial relationship between the divorced parent(s) and the child.51
The 1989 Law retained the same methods as the old Civil Code in determining the issueof parental power, i.e., either by parental agreement or by court decision, but in
Article 340 of Chapter 6 on “Child Custody” listed three compartments of the rights involved in childcustody. The second compartment was referred to as “prean prodaw” which is closer to the meaning of“correct” or “discipline” in English, but section 2 of the same chapter which obviously attempted tofurther define the second element of child custody mentioned in Article 340 was entitled “the Right toPunish” (seth dak toankam, consisting of Articles 349 and 350).
47
Article 340 of the old Civil Code: “The parental rights are the right to detain the child, the right todiscipline the child, and the right to administer the property of the child.”
48
Article 336 of the old Civil Code: “When the parents are still in a married relationship, only the father
holds the parental right.” The original French Code Civil (of 1804) contained a somehow similar
provision in Article 389 to the effect that, during marriage, the property of minor children was
administrated by the father. Jean-Louis Halperin, The French Civil Code, Translated by Tony Weir,
University College London, 2006, p.27 and Le Code civil francais – Evolution des textes depuis 1804,
Dalloz, Paris, 2000, p.164.
49
Article 337 of the old Civil Code: “When the father dies or the court judges revokes his authority, or
the father has restricted legal capacity, the mother shall receive the parental rights in these cases.”50
Article 338 of the old Civil Code: “When the father and the mother get divorced, the mother only
receive the parent rights over the child who has been transferred to the care of the mother.”51
Article 246 of the old Civil Code: “The judgment that separates the husband and the wife shall decideon the parental rights which will go to either the father or the mother and shall decide on the contacts
between the parents and the child”.
Article 72 of the 1989 Family Law: “The divorce judgment shall be based on the parental power todetermine who should receive the custody of the children and to determine the relationship between
the father, mother and children.”(Cited from the English translation annexed to the textbook by Lindsay Harris & Phyllis Cox, 1996, p.139.
The Khmer language is almost completely the same between Article 246 of the old Civil Code and Article
72 of the 1989 Law. Yet, the differences in the English translation are nonetheless remarkable.)46

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accordance with the principle that a breast-feeding infant stays with the mother. Thiswas based on the conviction that parental agreement would serve the interests of thechild.52 If the divorcing parents could not reach any agreement, the court would thenhave to decide.
One important deviation of this 1989 Law from the old Civil Code was the right tovisitation of the non-custodial parent. The non-custodial parent had the right to visit thechild, and the custodial parent had to do everything possible to facilitate the otherparent’s visit.53 In addition, the non-custodial parent could also challenge the custodial
right of the other parent at any time and ask the court to revoke it if there would be bad
impacts on the interest of the child.54 However, the 1989 Family Law did not provide
for a mechanism through which the non-custodial parent could retain some kind of rolein helping to decide for the future of the child. In some extreme cases, he/she might
have resort to the power to challenge the custody of the other parent in order to change
the way of raising and education of the child, but this procedure could only be invokedwhen the interest of the child could be proven to be in jeopardy.55
Although the 1989 Family Law did not explicitly provide for joint parental custody overa child, the principle of equality between spouses in marriage and in family life
stipulated by Articles 1 and 29 theoretically rejected the concept of paternal custodyembodied in Article 336 of the old Civil Code.

Article 73 of the 1989 Family Law: “For the children interests, a decision to which party will receive
the custody of the children shall be determined in accordance with an agreement of the divorcing
husband and wife.
According to general principles, a baby who is still breast feeding shall be under the custodyof the mother.
In a case where there is no agreement between the parties regarding the custody of thechildren, the custody shall be determined by the court.”
53
Article 75 of the 1989 Family Law: “A party who does not receive custody of the children has the rightto visit his or her children.
The party who is entitled to receive custody of the children must make it easy for the otherparty to come to visit the children.
The party who does not receive custody of the children has the right to file a complaint at any
time with the People’s Court to revoke the other party’s right to custody of the children if thechildren’s interests is violated.”
54
Article 75 of the 1989 Family Law.
55
Article 75 of the 1989 Law.
52

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)The New Civil CodeThe new Civil Code further pursues the course of development launched by the 1989
Family Law, by incorporating the principle of collaborative exercise of the parental
power by spouses in a marital relationship.56 When one of the parents cannot exercise
the parental power, the other parent shall then exercise it alone. 57 Persons having
parental power are responsible for education of the child;58 place of residence of thechild;59 punishment of the child;60 giving permission to the child to start a profession
or business;61 and, demanding the transfer of custody over the child.62
In a divorce, the divorcing parents are required to discuss and determine between
themselves who will have the child custody.63 In the case of a yet-to-be-born baby at
the time of divorce, the mother will have custody when the baby is born. But the
divorcing parents may then determine, after the baby was born, that the father is thecustodial parent.64 At the failure of a discussion between the divorcing parents, thecourt must decide on the question of child custody by taking into consideration theinterests of the child.65 The court may also replace the parental power holder based on
an application submitted by the child’s relative up to the fourth-degree consanguinity
relationship, if the court considers that to be in the interests of the child.66
The non-custodial parent has the right to visit and socialize with the child and the duty
to bear the necessary cost of caring for the child.67 The right to visitation and the detailmode of its realization have to be determined by agreement between the divorcing
parents.68 Upon the failure of parental discussions, the court will have to decide on themode of visitation and the amount to be borne for the caring of the child, based on
56

Article 1036 of the 2007 Civil Code.
Article 1036 of the 2007 Civil Code.
58
Article 1043 of the 2007 Civil Code.
59
Article 1044 of the 2007 Civil Code.
60
Article 1045 of the 2007 Civil Code.
61
Article 1046 of the 2007 Civil Code.
62
Article 1047 of the 2007 Civil Code.
63
Article 1037(1) of the 2007 Civil Code.
64
Article 1037(2) of the 2007 Civil Code.
65
Article 1037(3) of the 2007 Civil Code.
66
Article 1039 of the 2007 Civil Code.
67
Article 1040(1) of the 2007 Civil Code68
Article 1040(2) of the 2007 Civil Code57

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requests submitted by the father or the mother.69 The court may also change the modeof visitation and the necessary amount to be borne for the caring of the child, based on
the requests by the father or the mother, if the court considers this change to benecessary for the interests of the child.70 When deciding on visitation, the court musttake into account the interests of the child; and when it decides on the amount to be paid
for the caring of the child, it must take into consideration the actual living and economic
conditions of the father and the mother. 71 If the divorcing parents cannot discuss
between themselves or submit the requests mentioned in this paragraph to the court, arelative of the child up to the fourth degree consanguinity relationship may submit therelevant requests instead.72
Although Article 1037 requires the parental power to stay with only one of thedivorcing parents, the non-custodial parent nevertheless retains some important roles toplay in safeguarding the interests of the child. These roles include the right to demand
the parental power holder to report on the situation of the child,73 and the opportunity to
be discussed with about some key elements related to the exercise of the parental
power.74 Article 1042 elaborates on these elements by stating that, except for cases of
emergency, the parental power holder must discuss with the other parent about thechild’s education when the child is over the age of statutorily defined compulsory
education; any change in the child’s place of residence from one city or province toanother; the child’s profession or business; medical treatment crucial to the survival of
the child; administration of the important portion of the child’s property; and, any otherimportant issues related to the caring of the child and management of the child’s
property.75

General Conclusions
The old Civil Code incorporated much of the French notions and norms about family
69

Article 1040(4) of the 2007 Civil Code.
Article 1040(5) of the 2007 Civil Code.
71
Article 1040(6) of the 2007 Civil Code.
72
Article 1040(7) of the 2007 Civil Code.
73
Article 1041 (1) and (2) of the 2007 Civil Code.
74
Article 1042 of the 2007 Civil Code.
75
Article 1042 of the 2007 Civil Code.
70

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Development of Legal Norms on Marriage and Divorce in Cambodia (2)during the early 20th century, mixing them with the Cambodian way of structuring a
feudal society conceding to polygamy and seeking modernization under the Frenchcolonial rule. This system sustained for more than half a century. It was then replacedby the 1989 Law on Marriage and Family, which for a significant part re-employed thenorms of the old Civil Code, but with elements of de-feudalizing the society andrestructuring the family and social relationship in a socialist context focusing more on
the equality of man and woman, and the role of local people’s council in guiding the
progress of social and economic lives of the society through the management of crisis
within family units. It was also a period of transformation to put women’s social status
to a new transition towards better equality and empowerment, seemingly following thedeveloping concepts of women’s and child’s rights on the international agenda. The
pursuit of international trends indeed sped up further with the adoption of the 1993
Constitution, following Cambodia’s accession to the Convention on the Rights of theChild (CRC) and the Convention on Elimination of All forms of Discrimination Against
Women (CEDAW) on 15 October 1992.
Focusing on the development of Civil Code provisions on marriage and divorce, theresearch finds that these provisions have followed a track change recognizable in thevery context of historical, political and social developments and intellectual evolution of
the legal system of Cambodia. Starting with the old Civil Code enacted in the early
1920s and subsequently amended in 1937 and 1954, then filtering through the 1989
Law on Marriage and Family enacted by the post-Khmer Rouge socialist governmentand closing up at the 2007 Civil Code prepared side-by-side with top Japanese scholars
and experts in the post-1993 Cambodian context, the research has been able to identify a
few dramatic changes in the way Cambodian legislative drafters perceived of the issuesof family, marriage and divorce as they developed in the country over a century. Unlike
Japan or other legal systems where the court has contributed to the development of law
through their leading judgments, the case of Cambodia saw these changes
predominantly led by the legislative branch of different regimes. Legislators haveembraced the knowledge from foreign experts in combination of their understanding of
the global trends and their reflection of the problems of the past, in order to shape thepaths of social and legal development.

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However, if the current trend of securing gender equality and party autonomy inmarriage and safeguarding child interests in case of divorce indeed was attributed to thedevelopment of the 1980s, it was not due to external liberal pressures, nor the direct
effects of international conventional obligations, as the country was technically isolated
from the Western liberal influences and not in a position to accede to the international
treaties on the rights of woman and the child in the 1980s.76 The research also finds thatthe 1989 Law started to follow the emerging international efforts to place the interestsof the child at the center of court judgments related to divorce and its legal effects onchild custody and division of property. But this new tendency has only produced moretangible effects through legal language and practices after the 2007 Civil Codeemphasizes on the role of the court as a third party to pass the concluding judgment on
the issue of child custody and parental responsibilities. This latest development hasbrought Cambodian law on divorce one step further in search for the proper protectionof the “best interests of the child” in the Cambodian context. It has come about as aresult of the collaboration between Cambodian legislative drafters and the Japaneseexperts to incorporate the relevant provisions into the 2007 Civil Code.
With the cycle of transition having been culminated in the promulgation and coming
into force of the 2007 Civil Code, accelerating the ongoing legal and judicial reforms toempower the judicial system and to introduce a stronger concept of the rule of law
based on the constitutional principle of separation of powers, will this trend of legal
development, particularly in the field of family laws and norms related to marriage anddivorce, be picked up and strengthened by the judiciary, following the experiences ofJapan, France or other donor countries that have assisted the legal and judicial reforms
in Cambodia during the last one decade or two? This is a question deserving further
observations and research.

76

The Phnom Penh administration that controlled most of the Cambodian territory after the collapse of
the Khmer Rouge and promulgated the 1989 Law was not represented at the United Nations until theearly 1990s.

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