Divorce by mutual consent is a case where spouses are really willing to divorce and have agreed on the following issues: (i) terminating the marriage relationship; (ii) agreement on child raising, (iii) agreement on common property division of the spouses (if any). At that time, the spouses submit the petition to recognise the divorce by mutual consent[2] with relevant documents to the competent Court for processing and handling.
The husband or the wife or both have the right to request a Court to settle the divorce case[4]. However, Article 51.3 of the Law on Marriage and Family 2014 stipulates that the husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child. The wife’s consent is not enough to form an exception. Therefore, during the time when the wife is pregnant or is nursing an under-12-month child, regardless the spouses agree to a divorce by mutual consent and submit a petition for recognition of divorce, the Court will not accept the petition because the husband does not have the right to request a divorce settlement in such a case.
During the period of time where a wife is pregnant, nursing an under-12-month child or being treated at the request of a doctor is when the wife often has symptoms of extraordinary stress due to changes of psychological features. This is the time when the wife needs the attention and sharing from the husband and needs to minimise emotional shocks, in order to avoid affecting the health of the pregnant wife, fetus or newborn child. A divorce, whether mutual consent or any other reason, has certain influence on the mentality of the wife. Therefore, to protect the rights and benefits of wife and children, the law excludes the husband’s right to request a divorce during this period.
However, the wife can file a petition for unilateral divorce if she considers that the divorce shall be necessary and better for herself or her child(ren) or maintaining, taking care of her fetus in this period. In such a case, the Court will accept and settle the case as the procedure for unilateral divorce.
[2] According to the form issued by the Resolution No. 01/2017/NQ-HDTP.
[4] Article 51.1 of the Law on Marriage and Family 2014.
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