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 the marriage relation according to the regulation of Vietnamese law. Although they have no longer lived together, the spouses still have obligation to their child(ren), common properties of the spouses, and other obligations related to the marriage relation.

Currently, the Law on Marriage and Family 2014 and its relevant implementing instruments do not regulate the marital separation. Therefore, the Court will not settle any issue related to the marital separation in the spouses’ relation but will only settle issues related to the divorce under the regulations of law. Concurrently, the marital separation is not one of the decisive grounds for the Court to decide whether to agree a divorce or not because the Court only considers elements which prove the failure of marriage life, etc. Thus, the marital separation is not a mandatory element before filing for divorce.

In the event the spouses would like to separate, the two spouses will negotiate and decide on their own matters without the intervention of any competent State agencies and whether short or long separation duration completely depends on the agreement between the spouses. However, no matter how long the separation period will be, the marital relationship still legally exists. This means that marriage rights and obligations (such as properties, identity, children) remain in effect for both spouses.

Similar to the above-mentioned marital separation issues, the husband and wife’s physical relations are also not governed by the details of the Law on Marriage and Family. Therefore, whether or not a spousal sexual relationship will continue during a spousal separation is completely dependent on the spouses’ willingness without any specific regulation binding the spouses to implement such a relation.

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