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 for a disappearance is 02 consecutive years or longer. The two-year period shall commence from the date of the last information regarding such person; if the date of the last information is not able to be determined, the two-year period shall commence from the first day of the month following the month of the last information; if the day or month of the last information is not able to be determined, the period shall commence from the first day of the year following the year of the last information; and
- There is no reliable information on whether such person is alive or dead although all notification and search measures have been applied in accordance with the Civil Proceedings Law.
Only when a Court decision declares a person to be missing, the divorce request of the other spouse will be settled by the Court. Therefore, in case a husband or a wife leaves home and the other person does not know where he or she is for a long time without a decision of the Court declaring that the person is missing, it will not be considered a good reason to request the Court for unilateral divorce.
In this case, in order to prove that the absence of the husband or wife is entitled to apply for a divorce, the husband or the wife who has a request for a divorce shall prove the time period of disappearance of 02 consecutive years or longer and all notification and search measures have been applied in accordance with the Civil Proceedings Law but there is no reliable information whether such person is alive or dead. Such demonstrations are aimed at requesting the Court to make a decision to declare the missing of the other spouse and once this decision is available, he or she can request the Court to settle the unilateral divorce.
In addition, regarding divorce procedure for a person declared to be missing by the Court, due to such particular circumstance, it is no longer possible to carry out a divorce case under general procedure. Specifically, the lawful conciliation cannot be held because the missing spouse cannot participate in the conciliation stage with reasonable reason[4].
Moreover, there are controversial opinions about the obligations of the Court to send and notify procedural documents to the place where the missing person resided. One of these opinion indicates that if a spouse has been declared missing by a Court’s legally effective decision, it is unnecessary to issue, serve and notify the procedural acts under the regulations of the Civil Proceedings Code 2015. In contrast, there is the other opinion which indicates that it is required to properly conduct the procedure for the purpose of ensuring the right of the spouse who has been declared missing and does not have any legal document regulating the necessity for the Court to notify procedural acts to a missing person[6]. From the authors’ point of view, the first opinion is preferable to the second, since if a person has been declared missing by a decision of the Court under the regulations of Vietnam which means after implementation of a lot of researching methods and there is no clue as to his or her whereabouts after a reasonably long period of missing, then, the return of such a person is unlikely. Thus, if the implementation of service or notification of the procedural acts is only mechanical in the application of laws, it takes time as well as increases the cost of legal proceedings for an action which has predictable results.
[2] Article 68 of the Civil Code 2015.
[4] Article 207.2 of the Civil Proceedings Code 2015.
[6] Chu Huong Thuy, “Concerns in settling claims of a missing person to settle divorce”, People’s Court Journal dated 28 September 2019, https://tapchitoaan.vn/bai-viet/trao-doi-y-kien/vuong-mac-trong-giai-quyet-tuyen-bo-mot-nguoi-mat-tich-den-giai-quyet-ly-hon.
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