Sharing of expertise
Question 16: In a divorce case that either spouses unilaterally requests a divorce due to the fact that the spouses no longer love each other or the difference in lifestyle and sex of each of the spouses, whether such fact is a proper reason for the Court to accept the case and permit the divorce? If so, does the plaintiff only need to prove that this reason has arisen only once or such a reason must be arisen many times in a reasonable period of time and meet the requirements of the degree of seriousness?
Divorce is an event in which the husband and wife relation ends under a Court’s legally effective judgement or decision. If the spouses fail to reach an agreement on divorce, based on the petition of either the husband or the wife, the Court shall conduct the settlement of divorce if it has grounds to believe…
Question 15: Is adultery deemed to be a favourable factor for the plaintiff (if there are any evidence) when the Court considers resolving a divorce case and dividing common properties of the spouses?
Currently, the Vietnamese laws do not provide any specific definition of adultery but only state that: “A cohabitation as a spouse with a person that one of the two persons is in a marriage relationship with another person is considered as a violation of the marriage regime”[2]. Although in practice, adultery may be manifested in…
Question 14: Under which circumstances is the Court entitled to refuse a unilateral request from a spouse?
Under the provisions of Article 51.1 of the Law on Marriage and Family 2014, husband or wife or both has or have the right to request a Court to settle the divorce[2]. Therefore, both spouses have the right to unilaterally divorce. The legal basis for which the Court may accept the unilateral divorce of the…
Question 13: Under which circumstance is a Court entitled to deny its acceptance and return petition for legal action to the plaintiff?
In principle, the Court must accept the case of the litigants, but it does not mean that the Court must perform this obligation in every case. According to the Civil Proceedings Code 2015, the Court has the right to return the petition if one of the following circumstances occurs: The petitioners have no right to…
Question 12: If the Court has the authority to reject the petition for divorce of the spouse, how long will that spouse have to wait in order to be able to submit the divorce petition again to the Court?
For a divorce request which has not been accepted by the Court, the spouses have the right to resubmit the petition and initiate a lawsuit. The Court shall still review the petition and resolve the spouses’ request according to the civil proceedings[2]. However, if a spouse’s divorce petition is rejected by the Court, he or…
Question 11: Does the regulations of the Law on Marriage and Family require both spouses to have marital separation time before applying for divorce? If so, what is the minimum duration for such marital separation time? Must marital separation be understood as not related to sexual relation or related to the absence of sexual relation and the fact that the spouses do not live together in the same living place?
A marital separation is only a social term and not a legal term. In practice, a marital separation is a situation where the spouses suspend living together, or no longer taking care of each other and no longer having a physical relationship with each other. However, such suspension of living together has not yet terminated…
Question 10: Is the absence from home of spouse without another spouse’s awareness for a long period considered to be a legitimate reason for him or her to request the Court for a unilateral divorce? If it is a legitimate reason, what is the minimum time for the spouse to be deemed as missing? How to prove that the spouse is missing?
According to Article 56.2 of the Law on Marriage and Family 2014, if a spouse of a person who has been declared missing by the Court applies for divorce, the Court shall grant the divorce. The conditions for the Court to accept a request to declare a person missing is as follows[2]: The time period…
Question 9: Is a third party, a person or an organisation, allowed to apply for a divorce on behalf of either spouse? And why?
In principle, the right to marry as well as the right to divorce are individual rights, accompanying each person which consequently cannot be assigned to any third party[2]. Thus, either the husband or wife cannot authorise anyone to apply for a divorce on their behalf. However, they may authorise a third party, a person or…
Question 8: In case a Vietnamese is married to a foreigner and is granted a marriage registration certificate in both countries, will the divorce petition be submitted to the Court of each country or only to one?
Under the regulations of the Law on Marriage and Family, a marriage relation is considered a marriage and family relation involving foreign element when one of the following elements is found: The subject of the marriage and family relation has at least one spouse being a foreigner or a Vietnamese residing abroad; and The marriage…
Question 7: Which Court has jurisdiction to settle a divorce case when the marriage registration certificate is issued in the locality where the spouses resided permanently or temporarily, but at the time they file a petition for divorce they have already moved to another place to live?
Currently, divorce is carried out in one of the two forms: (i) Divorce by mutual consent is a case in which both spouses agree to divorce, agree on all matters related to properties as well as common child(ren) and only request the Court to recognise the divorce; or (ii) Divorce at the request of one…