- Circumstances for suspending the divorce resolution
Suspending the divorce settlement means the Court shall issue a decision to suspend the settlement when there are legal grounds. As usual, the case shall be resolved by judgement or decision of the Court which came into effect. However, during the settlement, if the legal ground for the suspension appears, the Court shall issue its decision to suspend the settlement of the divorce case, meaning the divorce case shall be closed similar to other civil cases. Upon acceptance of the divorce case which falls under its jurisdiction, the Court shall issue a decision to suspend the divorce case in any of the following circumstances:
- The plaintiff or the defendant of the divorce case dies. A wife or a husband dies during the resolution of the divorce case means their marriage is automatically terminated. Therefore, the Court does not need to continue either the settlement or the acceptance of the plaintiff’s divorce. Any property related dispute shall be settled as the inheritance case between the husband or the wife who is still living and other related third parties;
- A plaintiff withdraws the petition or the plaintiff is absent at the trial upon being properly summoned by the Court for the second time and the defendant does not make a counterclaim or a person with related rights and obligations does not make any independent claim[4]. If the defendant makes a counterclaim or that the person with related rights and obligations makes an independent claim, the Court still continues with the resolution of the case and the litigation status of the spouses shall be changed[5]. Please note that if the plaintiff withdraws the petition prior to or at the appeal hearing of the divorce case, it shall require the consent of the defendant [6];
- The plaintiff fails to pay a deposit for the expenses of property valuation and other proceedings expenses in accordance with the Civil Proceedings Code 2015; and
- Cases where the petition must be returned though having been accepted by the Court [8], i.e. the plaintiff does not have the right to initiate legal action (example: the husband requests divorce when his wife is pregnant) or the plaintiff does not have full capacity for civil acts (since the mental illness or other illness makes that person incapable of being aware of or controlling his or her own acts and declared by the Court to have lost capacity for civil acts), the plaintiff fails to make the amendments and additions at the request of the Judge, etc. Although the Court has accepted the initiation due to the special reasons, the Court still retains the right to suspend the divorce case.
2. The results of the suspension of a divorce case
When suspending the divorce case, the Court shall issue a decision to suspend the case, concurrently remove the name of that case from the book of acceptance and return the petition for initiation of a legal action and attached data or evidence to the plaintiff if the plaintiff requests. The Court shall, within 03 working days from the date of the decision to suspend the resolution of the civil case, forward such decision to the spouses, the agency, organisation or individual initiating the legal action and the Procuracy of the same jurisdiction[10].
For most civil cases, when being suspended by the Court, the spouses are not usually entitled to initiate a legal action, to petition the Court to reconsider such civil case if there is no change in the legal proceedings in terms of plaintiff, defendant and legal relations in dispute. Except for cases where the plaintiff withdraws the petition for initiation of the legal action or the plaintiff who has been properly summoned fails to appear twice, the plaintiff has acquired full capacity of civil acts. However, for the divorce case, after suspending the settlement of the case, the spouses still have the right to resubmit the petition in most cases[12], except in cases where the wife or husband dies or the plaintiff still does not have right to petition or the plaintiff does not have full capacity of civil acts.
3. Dealing with Court fee deposits in case of the suspension of the divorce case
When suspending the proceedings of a divorce case, the Court fee deposits paid by the plaintiff may be returned or appropriated and paid into State funds depending on the following particular cases:
The Court fee deposit paid by the plaintiff may be appropriated and paid into State funds if:
- One of the spouses died;
- The plaintiff has been properly summoned but fails to appear twice, unless he or she requests the Court to conduct the hearing in his or her absence due to an event of force majeure or objective hindrance[14].
The Court fee deposit paid by the plaintiff may be returned if[16]:
- The plaintiff withdraws the petition for initiation of the legal action;
- The plaintiff fails to pay a deposit for expenses of property valuation or other expenses for proceedings in accordance with the Civil Proceedings Code 2015;
- The plaintiff is not entitled to initiate the legal actions as prescribed by the Civil Proceedings Code 2015 or does not have full capacity for acts in civil proceedings;
- The plaintiff has not satisfied all condition to initiate a legal action prescribed by law;
- The case does not fall within the jurisdiction of the Court; and
- The petition fails to make the amendments and additions at the Judge’s request.
4. Appeal of the decision to suspend the divorce case of the Court
The consequence of the suspension of a divorce case is the closure of the case and the end of consideration for the spouses’ request. Therefore, the laws of Vietnam have allowed the spouses to appeal against the decision to suspend the resolution of the case to protect their legitimate rights and interests. According to the Civil Proceedings Code 2015, one of the spouses has the right to appeal against the decision to suspend the resolution of divorce in accordance with the appeal proceedings[19]. The time limit for lodging an appeal against a decision to suspend a proceeding made by the Court of first instance is of 07 days, as of the date on which the spouse receives the decision[20]. The decision to suspend the case shall come into effect if the spouses do not appeal and that the Procuracy does not protest the decision to appeal within 10 days from the date received such decision.
Upon implementing the right to lodge an appeal, the appellant shall
make an appeal petition. The appeal petition shall be submitted to the Court of
first instance which rendered the suspension[22]. The Court of first instance shall examine the appeal petition. If the
appeal petition is valid, the Court of first instance shall notify the appellant and once the Court fee for the appeal hearing has been
paid, the Court shall forward the case file to the appellate Court.
[4] Article 227.2.(a) of the Civil Proceedings Code 2015.
[5] Article 245 of the Civil Proceedings Code 2015.
[6] Article 299.1 of the Civil Proceedings Code 2015.
[8] Article 192.1 of the Civil Proceedings Code 2015.
[10] Article 217.3 of the Civil Proceedings Code 2015.
[12] Article 192.3.(b) and Article 218.1 of the Civil Proceedings Code 2015.
[14] Article 218.2 of the Civil Proceedings Code 2015.
[16] Article 18 of the Resolution No. 326/2016/UBTVQH14 of the National Assembly’s Standing Committee.
[19] Article 218.4 of the Civil Proceedings Code 2015.
[20] Article 273.2 of the Civil Proceedings Code 2015.
[22] Article 272.7 of the Civil Proceedings Code 2015.
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