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 spouse is when there is solid legal ground to believe that a spouse commits internal violence or seriously infringes upon the rights and obligations of the husband or the wife, which seriously deteriorates their marriage and makes their common life no longer possible and the marriage purposes are unachievable[4].

The above is the legal basis for the Court to consider unilateral divorce. However, the Court will not accept the petition for unilateral divorce of spouse for any of the following cases:

  • The plaintiff does not have the right to initiate the legal action or full capacity for acts in civil proceedings as prescribed in Article 186 of the Civil Proceedings Code 2015;
  • The matter has been resolved by a legally enforceable judgement or decision of a Court or other authorised State agencies except where the Court has dismissed a petition for divorce or change of person raising a child or change of level of support or level of compensation for damage according to the Article 192.1.(c) of the Civil Proceedings Code 2015;
  • The time-limit prescribed in Article 195.2 of the Civil Proceedings Code 2015 has expired but the plaintiff has not lodged a receipt for payment of the court fee advancewith the Court, unless the plaintiff is exempted from or is not required to pay an court fee advanceor there is an objective hindrance or occurrence or an event of force majeure;
  • A case not falling under the jurisdiction of the Court is a circumstance in which as legal requirements, civil, marriage and family, business, commercial or labour disputes fall under the jurisdiction of other agencies, and organisations or are being processed by other competent agencies, and organisations. Pursuant to Article 192.1.(đ) of the Civil Proceedings Code 2015 and Article 4 of the Resolution No. 04/2017/NQ-HDTP;
  • The plaintiff fails to make necessary amendments and additions at the request of the Judge/Court prescribed in Article 193 and Article 192.1.(e) of the Civil Proceedings Code 2015; and
  • The plaintiff withdraws the petition, in accordance with Article 192.1.(g) of the Civil Proceedings Code 2015.

Thus, when either spouse unilaterally divorces in any of the above cases, the Court will return the petition and not accept the jurisdiction over the divorce file.

[2] Article 51.1 of the Law on Marriage and Family 2014.

[4] Article 56.1 of the Law on Marriage and Family 2014.

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