21 FQAs about the relation of husband and wife during the divorce period and the divorce procedure

 Date: 25 November 2021

Through this article, BLawyers Vietnam would like to introduce to you a list of 21 FQAs about the relation of husband and wife during the divorce period and the divorce procedure.

divorce

1. Who has the right to request the Court to settle the divorce between spouses?

The following persons have the right to request the Court to settle the divorce:

(i) A spouse or both; or

(ii) A parent or relative of a spouse who is unable to perceive and control his/her acts due to a mental disease or another disease and currently is a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.

2. Which cases that the spouses cannot request the Court to settle the divorce?

A husband cannot request a divorce when his wife is pregnant, giving birth, or is nursing an under-12-month child.

3. How is the jurisdiction of Vietnamese Courts regarding divorce with foreign elements regulated?

By laws, disputes, or requests for divorce settlement involving the parties or assets abroad are under the jurisdiction of a provincial-level People’s Court. Other cases shall be under the jurisdiction of a district-level People’s Court.

For the case where the Court settles a divorce between a Vietnamese citizen in the border area and a citizen of a neighboring country who resides in the border area with Vietnam, it falls under the jurisdiction of a district-level People’s Court.

4. Is grassroots conciliation a mandatory procedure before the divorce settlement?

No, it is not. The State encourages conciliation at the grassroots level when the husband and wife have a divorce request but do not put it in a compulsory status.

5. Is the mediation at the Court a mandatory procedure before the divorce settlement?

No, it is not. Article 54 of Law on Marriage and Family 2014 (“LOMF 2014”) regulated that after accepting a divorce petition, a Court shall conduct conciliation in accordance with the civil procedure law. However, according to Article 207.3 of Code of Civil Procedures 2015 (“CCP 2015”), the Court shall not carry out the mediation procedure when one of the involved parties applies for non-mediation.

6. What is divorce by mutual consent according to Vietnamese laws?

By laws, divorce by mutual consent means the spouses agree to a divorce and have reached an agreement on the division of property, the care, nursing, and education of children based on ensuring the legitimate interests of the wife and children.

7. How are the procedures of the divorce by mutual consent of husband and wife settled at Court?

The procedure to settle the divorce by mutual consent includes the following steps:

  1. Step 1: Husband and wife prepare a mutual divorce dossier and submit it to the competent People’s Court;
  2. Step 2: After receiving the dossier, within 03 working days, the Chief Justice of the Court will assign a judge to handle the dossier. If the dossier is eligible, the judge will issue a notice to the couple to pay the fee within 5 working days;
  3. Step 3: Within 03 days from the date of acceptance to settle, the involved parties will be notified of the settlement of the request for recognition of divorce by mutual consent;
  4. Step 4: The Court prepares for consideration of the divorce by mutual consent dossier;
    • The time limit for preparing for consideration of the dossier is 01 month from the date of acceptance. Such a time limit can be extended for not exceeding 01 month.
    • During the time of preparing for consideration of the dossier, the Court shall issue a decision to open a meeting to resolve the request for the divorce by mutual consent.
  5. Step 5: The Court shall open a meeting to resolve the request for the divorce by mutual consent within 15 days from the day on which the decision to open the meeting is issued;
  6. Step 6: The Court issues the decision on recognizing the divorce by mutual consent.
    • In case of successful conciliation, the husband and wife reunite, the Court will issue a decision to suspend the settlement of the request for the divorce by mutual consent.
    • If the conciliation fails, and the couple still wishes a divorce, the Court will issue a decision on recognizing the divorce by mutual consent. The marriage relation terminates from the date on which the decision on recognition of the divorce by mutual consent takes legal effect.
8. Can the Court settle a divorce by mutual consent of husband and wife when both parties are not present in Vietnam?

Yes, it can. According to Article 367.2 of CCP 2015, in case the husband and wife cannot return to Vietnam to attend the meeting to resolve the request for divorce by mutual consent, and at the same time, there is a request to the Court to settle the divorce by mutual consent in their absence, the Court may consider and settle the case according to general procedures.

9. How are the procedures of divorce disputes between husband and wife settled at the Court?

The procedure to settle divorce disputes between husband and wife includes the following steps:

  1. Step 1: The spouse prepares divorce petition, supporting documents and submits to a competent Court;
  2. Step 2: After receiving the request to resolve the divorce dispute, the Court will consider accepting the divorce case. If it is considered to have grounds to accept the case, the Court shall request the plaintiff to pay advance court fees;
  3. Step 3: The court opens a meeting to examine the handover, access, and publicizing of evidence, and conducts conciliation in accordance with the laws. At the mediation meeting:
    • If the conciliation is successful, the Court will issue a decision to recognize the successful conciliation;
    • If conciliation fails, the Court will settle the case.
  4. Step 4: The court opens a first-instance trial and issues a decision to resolve the divorce dispute. After the trial, the Court will issue a judgment to terminate the marriage relationship between husband and wife.
10. Can the Court separate the property dispute from the divorce case?

Yes, it can. Divorce requests, requests related to property disputes upon divorce, requests related to child custody disputes upon divorce are considered as different requests but similar in composition of the litigants. If necessary, the Court can entirely separate the property dispute from other requests in the divorce case.

11. Can a foreigner not living in Vietnam authorize another person to participate in the resolution of the divorce at a Vietnamese Court?

No, he/she cannot. According to the laws, in a divorce case, the involved parties cannot authorize another person to participate in the proceedings of the litigation on their behalf. The involved parties can only authorize another person to participate in the proceedings of the resolution of the dispute over the property upon divorce.

12. How much are the advance court fees and court charges for divorce at the Court?
a. Court fees advance

In case the involved party’s claim is not an amount or it is impossible to determine the value in a specific amount, it shall be considered as a marriage and family dispute with no value and the amount of court fee advance in this case is equal to the first-instance marriage and family dispute court fee without value, meaning VND300,000.

In case the involved party’s claim is for an amount of money or property that can be determined by a specific amount, it shall be considered as a marriage and family dispute with the value and amount of the court fee advance in this case is equal to 50% of the court fee for a first-instance marriage and family dispute with the value estimated by the Court according to the value of the disputed property requested by the involved parties to be resolved, but at least not less than VND300,000.

b. Court charges advance

In case of divorce by mutual consent, the court charges advance is equal to the court charges, meaning VND300,000.

13. Who is the one to bear obligations to pay first-instance advance court fees and court charges for the divorce at the Court?
a. Obligations to pay the court fees advance

Plaintiffs and defendants who make counterclaims against the plaintiffs in divorce cases or applicants requesting the Courts to settle a divorce must pay a first-instance court fee advance.

For requests for recognition of consent for divorce, agreement on child-rearing, and property division upon divorce, husband and wife may agree on the payment of fee advance. In case the husband and wife cannot agree on who pays the fee advance, each person must pay half of the fee advance.

b. Obligations to pay the court charges advance

Regarding the requests for the recognition of divorce by mutual consent, agreement on child-rearing, and property division upon divorce, husband and wife may agree on the payment of the court charge advance. In case the husband and wife cannot reach an agreement, each person must pay half of it.

14. What documents are required when requesting the Court to settle a divorce?

Applications needed to request the Court to settle the divorce includes:

  1. Divorce petition;
    • In case both spouses agree to divorce, the divorce petition shall be signed by both husband and wife;
    • In case the spouse is living abroad, it must be certified by the Vietnamese with a diplomatic mission in that country.
  2. A certified copy of ID card/Passport, household registration;
  3. An original marriage certificate; and
  4. Other documents provided by the laws.
15. What is a divorce with foreign elements?

Divorce involving foreign elements is the termination of the husband-and-wife relationship according to a legally effective judgment or decision of the Court in case the involved parties are foreigners, or the involved parties are abroad, including:

  1. A divorce between a Vietnamese and a foreigner;
  2. A divorce between two foreigners permanently residing in Vietnam;
  3. A divorce with common children living abroad;
  4. A divorce but with property abroad; or
  5. A divorce but the involved parties are living abroad.
16. Must foreigners be present in Vietnam to receive the Court’s divorce decision?

No. According to Article 85.4 of CCP 2015, for the divorce case, the involved parties must not designate any other persons to participate in the procedure on their behalf.

In addition, Article 474.1.e of CCP 2015 regulated that the Court can deliver or notify its procedural documents by post to legal representatives or proxy representatives in Vietnam of involved parties living overseas.

It can be understood that the laws only prohibit the authorization to participate in court proceedings in divorce cases and allow the involved parties to authorize to receive the Court’s judgment. Therefore, foreigners must not be present in Vietnam to receive the divorce judgment of the Court.

17. How is the recognition and enforcement of foreign judgments on divorce in Vietnam implemented?

The recognition and enforcement of foreign judgments on divorce in Vietnam are implemented in the following steps:

  1. Step 1: Submitting petitions and enclosed dossiers for recognition and enforcement. Within 03 years from the day on which the divorce judgment/decision of a foreign Court takes legal effect, the judgment/decision creditors, persons with relevant legitimate rights and interests, or their lawful representatives submit their petitions and enclose documents needed to Vietnam’s Ministry of Justice according to provisions of an international treaty to which Vietnam and home country of such foreign Court are co-signatories or to a competent Vietnam’s Court specified by law to request recognition and enforcement in Vietnam of such judgment/decision;
  2. Step 2: Transferring of documents to Courts. Within 05 working days after receiving the petitions, dossiers, the Ministry of Justice sends such documents to competent Courts as provided by the laws;
  3. Step 3: Acceptance of documents. Within 05 working days from the day on which the documents sent from the Ministry of Justice are received or from the day on which the documents sent from the applicants are received, the Courts shall consider and accept the documents and notify the applicants, the judgment debtors or their lawful representatives in Vietnam, the Procuracies of the same levels and the Ministry of Justice;
  4. Step 4: Preparation for consideration of documents. The time limit for preparation for consideration of an application shall be 04 months from the day on which it is accepted. Within such time limit, on a case-by-case basis, the Court shall issue one of the following decisions:
    • To suspend the consideration of the documents;
    • To terminate the consideration of the documents; or
    • To open a meeting for considering the documents.
  5. Step 5: Meetings for considering documents. The consideration of documents shall be conducted at a meeting by a panel consisting of 3 Judges, one of whom shall act as the presiding Judge under the assignment of the Chief Justice of the Court. The procurator of the procuracy of the same level shall attend the meeting; if the procurator is absent, the meeting shall be still conducted by the Court. The meeting shall be conducted in the presence of the judgment creditors, judgment debtors, or their lawful representatives; if any of them is absent for the first time, the meeting must be postponed;
  6. Step 6: Sending of decisions of the Courts. Within 15 days from the day on which the decision is issued, the Court shall send such decision to involved parties or their lawful representatives, the Ministry of Justice, and the procuracy of the same level. In case deciding to suspend or terminate the resolution of the document, the Court shall send such decision to individuals, organizations mentioned above within 05 working days from the day on which the decision is issued.
18. Can a Vietnamese citizen who has registered his/her marriage with a foreigner in a foreign country request a divorce settlement in Vietnam?

Yes, they can. Article 469.1.d of CCP 2015 regulated that Vietnamese Courts have jurisdiction to resolve the divorce cases with the plaintiffs or the defendants being Vietnamese citizens or involved parties being foreigners who reside, work or live for a long term in Vietnam. Therefore, in case a Vietnamese citizen registers his/her marriage with a foreigner in a foreign country, he/she can still resolve the divorce in Vietnam.

However, for the marriage in the foreign country between the Vietnamese citizen and the foreigner to be recognized in Vietnam, the marriage must be documented in the vital records according to Article 34 of Decree No. 123/2015/ND/CP. Therefore, before requesting the Court for the divorce settlement, one of the parties need to carry out the procedure for marriage record as prescribed.

Read more some legal notes for divorce between a Vietnamese and a foreigner.

19. Is the marriage separation recognized by Vietnamese laws?

No. The prevailing laws have no specific regulation on marriage separation. However, Article 19.2 of LOMF 2014 regulated that unless otherwise agreed by the husband and wife or due to requirements of their occupations, work or study, or participation in political, economic, cultural, or social activities or for another plausible reason, husband and wife have the obligation to live together. Therefore, the laws recognize that the husband and wife do not live together if agreed.

20. During the divorce settlement at the Court, does it violate Vietnamese laws if one of the involved parties lives with another person?

Yes, it does. Article 57.1 of LOMF 2014 regulated that the marriage relation between husband and wife shall terminate on the date a court’s divorce judgment or decision takes legally effective.

According to Article 5.2.c of LOMF 2014, the laws prohibit a married person from getting married to or cohabitating as husband and wife with another person, or an unmarried person getting married to or cohabitating as husband and wife with a married person.

Therefore, during the time of divorce settlement at the Court, the marriage relationship between husband and wife still exists and it is a violation of Vietnamese law for one involved party to live with another.

21. What acts are prohibited by the Vietnamese laws in divorce?

According to Article 5.2 of LOMF 2014, prohibited acts related to divorce include the following:

  1. Sham divorce;
  2. Forcing a person into divorce;
  3. Deceiving a person into divorce;
  4. Obstructing divorce.

Accordingly, these acts shall be handled strictly by the laws. In addition, agencies, organizations, and individuals have the right to request the Court or another competent agency to take measures to promptly stop and handle violators related to the above-mentioned acts.

Should you have any questions about the above contents, please revert to BLawyers Vietnam at consult@blawyersvn.com. We are more than happy to hear from you!

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