Question 89: What is the evidence relating to the divorce case?

According to the applicable law, there is no specific provision regarding evidence in divorce cases. The law only refers to the source of evidence and the conditions which must be met to qualify them as evidence. Therefore, evidence related to a divorce case will also be applied under these provisions. Accordingly, the law classifies evidence based on its source. The source of evidence is simply understood as things which contain evidence, which means they contain information, or documents which exist in an objective reality, related to the case and which are collected according to the order and procedures prescribed by law. For each source of evidence, the law has its own regulations so that documents and information from that source are considered as evidence. Types of sources of evidence and conditions to be considered as evidence are determined as follows[2]:

The first: Readable, audible, visible documents, electronic data

Readable documents include certificates of marriage registration, birth certificates, certificates of land use right, and ownership of houses and other land-attached assets. Readable material shall be considered as evidence if it is an original, notarised or certified copy or a copy which has been supplied and certified by the competent authorities and organisations. For example, the certificate of marriage registration of the spouses submitted to the Court must be an original or a lawfully certified copy from the original. If the spouses only submit a non-certified copy, the Court could not accept it.

Audible and visible documents such as photographs, audiotapes, and videotapes. These documents are considered as evidence if there is a written representation of its origin. For example, if a wife provides a video of her husband having an illicit relationship with another person, the wife must have a written description of the origin of the video, such as where and in what situation the video was recorded.

Electronic data messages are expressed in the form of exchanging electronic data, electronic documents, electronic mails, cablegram, telegraphs, faxes and other similar forms according to the provisions of the Law on Electronic Transactions. For example, e-mails between the husband and another different gender person showing that the husband is lending money to such person.

The second: Physical evidence

Physical evidence is an object relating to a divorce case and has a certain evidential value for the case. In order to truly be regarded as evidence, physical evidence must be an original object, not copies. For example, spouses have a very valuable antique painting and have a request to divide the common property of the spouses being this painting. This painting is only regarded as an evidence if it is the original one, not a copy.

The third: Testimonies of spouses and witnesses

The testimonies of the spouses and witnesses are also qualified as important evidence in divorce cases. This declaration will help the Court easily recognise the nature of the case as well as the occurrences in the case of a divorce. In particular, when other evidence as provided by the spouses is insufficient, the declaration will be an important basis for the Court to determine the truth of the case.

To be considered as evidence, such testimony must be recorded in writing, on an audiotape, audio disk, or videotape or disc or other audio or image recording presented together with a document showing their origin or is orally given at the trial. Usually, the Court will summon the spouses and witnesses to the hearing to take the testimonies.

The fourth: Results of examination by an expert, record of the results of an on-the-spot appraisal, results of appraisal of assets or verification of the price of assets

The above documents are results established by third parties based on professional technical measures such as measurement, calculation and testing. The condition for these results to be considered as evidence is that the on-the-spot appraisal, the appraisal of assets and verification of the price of assets must be conducted strictly according to the law. The order, procedures, and authority to carry out these activities are not only regulated by the Civil Proceedings Code but are also governed by specialised laws such as the Law on Prices or the Law on Judicial Expertise… In cases where the conduct of these activities does not comply with the law, the results will not be considered as evidence. For example, if a wife requests the examination by an expert on her own without soliciting the Court, the result will not be considered as evidence because the execution does not comply with the provisions of law[4].

The fifth: Document to record the facts and legal acts issued by the competent person on the spot 

These are documents recording the facts and the legal acts made by a State authority or a competent person, such as a record of administrative violation or a patent issued by a bailiff. The condition for these documents to be considered as evidence is that the procedure for making such documents to be conducted according to the procedures prescribed by law for each type of document. The failure to meet these conditions shall result in the above documents not being considered as evidence. For example, a written record of an administrative violation regarding a husband’s injury to a wife made by the head of the civil residence group will not be regarded as evidence because the civil residence group head does not have the authority to issue such a document[6].

The sixth: Notarised and certified documents

Notarised and certified documents are very common evidence in divorce cases as well as in other civil cases. The probative value of these documents is very high because the facts and events recorded in these documents will default to be true and the spouses do not have to prove their existence[8]. For divorce cases, these notarised or certified documents may be notarised documents of the common property division of spouses during the marital period, and power of attorney for the husband has the right to sell the common properties of the spouses with a notarised signature. Condition for these documents to be considered as evidence, is the lawful procedure of the notarization or vertification pursuant to the law, specifically the Notarization Law. For example, a notarised document without the signature of the notary will not be considered as evidence.

[2] Article 94,95 of the Civil Proceedings Code 2015.

[4] Article 102.1 of the Civil Proceedings Code 2015.

[6] Article 1.8 of the Circular 14/2018/TT-BNV of the Ministry of Home Affairs.

[8] Article 92.1.(c) of the Civil Proceedings Code 2015.

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