Under the regulations of the Law on Marriage and Family, a marriage relation is considered a marriage and family relation involving foreign element when one of the following elements is found:
- The subject of the marriage and family relation has at least one spouse being a foreigner or a Vietnamese residing abroad; and
- The marriage and family relation between the spouses who are Vietnamese citizens but the basis for establishing, amending or terminating that relationship is in accordance with foreign law, arising in foreign country or properties related to such relation is located abroad.
Therefore, in case a Vietnamese marries a foreigner, it is a civil relationship involving foreign element as prescribed above. The determination of the Court’s jurisdiction will not be based on the marriage certificate granted in which country but on whether or not there is a permanent residence in Vietnam. According to Article 127 of the Law on Marriage and Family 2014, the determination of the jurisdiction of the Court in resolving divorces between Vietnamese citizens and foreigners occurs in any of the following two cases:
- The divorce between a Vietnamese citizen and a foreigner permanently residing in Vietnam shall fall under the jurisdiction of the Vietnamese Court; and
- If one of the spouses is a Vietnamese who does not reside in Vietnam at the time of the divorce request, the divorce will be determined in accordance with the laws of the country where the spouses permanently reside, i.e. the competence is determined in accordance with this law. Nevertheless, if they do not have a common place of residence, the divorce will be determined according to Vietnamese law (under the common jurisdiction of Vietnamese Court[2]).
Particular attention should be paid to divorce cases requiring real estate related property settlement, since specific rules must be followed. In Article 127 of the Law on Marriage and Family 2014 above, if the real estate is located abroad, the competence jurisdiction is determined according to the regulations in that country. For real estate disputes requested to be settled in Vietnam, it shall fall under the common jurisdiction of the Vietnamese Court[4].
For divorce cases which are settled abroad but
where the spouses are currently residing
or working in Vietnam or own properties related to the
execution of civil judgements or decisions of foreign Courts in Vietnam, the
spouse has the right to request a Court in Vietnam to recognise and enforce such
foreign Court’s judgement on divorce according to the provisions of the Civil Proceedings Law
of Vietnam[6].
[2] Article 470.1.(b) of the Civil Proceedings Code 2015.
[4] Article 470.1.(a) of the Civil Proceedings Code 2015.
[6] Article 425 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