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 spouse, also known as unilateral divorce is a case where one spouse institutes the divorce case. The determination of the competent Court to settle mediation and divorce cases is independent from where the spouses registered their marriage, but is based on the law provisions on Court jurisdiction at all levels and territorial jurisdiction.
Regarding jurisdiction of the Courts: district People’s Court will be competent to settle cases following first instance procedure for disputes and divorce request stated in Article 31.1 and Article 35.2 of the Civil Proceedings Code 2015. Disputes and divorce requests involving litigants or properties being abroad or requiring judicial delegation to overseas representative authorities of Vietnam, People’s Court or competent foreign authority will not fall under the jurisdiction of the district People’s Court; except case of cancelling illegal marriage, settling divorce petitions and disputes pertaining to rights and obligations of spouses, parents and children, parents and children adoption and guardian relationship between Vietnamese citizens living in frontier areas and citizens of neighbouring countries living near Vietnam[3].
Provincial People’s Courts are competent to settle disputes and divorce requests which are not under the jurisdiction of district People’s Courts.
The territorial competence of the Court is determined as follows:
- The territorial competence of the Court is determined as follows:If the spouses divorce at the request of one spouse, the competent Court is the Court of the place where the defendant resides (such as place of permanent or temporary registration) and works.[5] For example: the spouses have registered their marriage in Nha Be District, Ho Chi Minh City, but currently the wife is registering for temporary residence in District 5, Ho Chi Minh City, while the husband is registering for permanent residence in District 5, the wife may file a lawsuit at the People’s Court of District 5 where her husband is residing (if the marriage does not include foreign element);
- The spouses may agree in writing to petition the Courts of where the plaintiff resides or works, in the divorce case[7]. For example, for the above example, the spouses can agree in writing to settle the divorce in the People’s Court of District 5; and
- When the spouses agree to divorce, the competent Court to settle is the Court of the location where one of the spouses to a voluntary divorce resides or works[9]. For example, in the above example, the competent Court may be Nha Be District People’s Court or District 5 People’s Court.
In some cases, a spouse who files a divorce case can choose the Court which will handle the divorce case. Specifically, if the plaintiff does not know where the defendant resides or works or where his or her head office is located, the plaintiff may petition the Court of the location where the defendant last resides or works or where the last head office of the defendant is located or where the defendant’s properties are located to settle the divorce case[11];
Thus, the determination of the Court’s jurisdiction
to settle divorce does not depend on the issuance place of the marriage registration certificate of the spouses, but
is based on the place of residence (permanent or temporary) of the spouses
according to the analysis above.
[3] Article 37 of the Civil Proceedings Code 2015.
[5] Article 39.1.(a) of the Civil Proceedings Code 2015.
[7] Article 39.1.(b) of the Civil Proceedings Code 2015.
[9] Article 39.2(h) of the Civil Proceedings Code 2015.
[11] Article 40.1.(a) of the Civil Proceedings Code 2015
If you would like more information on how we can assist you with divorce issues, please contact us at: +84 (28) 36223522 or email us at info@phuoc-partner.com