When countries create conditions for citizens to move within the territories of countries, it creates a lot of relationships with “foreign elements”. However, this leads to difficulties in resolving civil disputes by the jurisdiction, especially in marriage and family relations with foreign elements. Besides, the litigants may also be confused because they do not fully understand the law. In this article LSX legal firm would like to guide you with: “Divorce by mutual consent involving foreign elements in Vietnam”
- Law on Family and Marriage 2014
- Civil Procedure Code 2015
Regulations on marriage relations involving foreign elements in Vietnam
Under the Law on Family and Marriage 2014 of Vietnam, the prominent regulations on marriage relations regarding foreign factors include:
Protection of lawful rights and interests of parties to marriage and family relations involving foreign elements
Article 121. Protection of lawful rights and interests of parties to marriage and family relations involving foreign elements
1. In the Socialist Republic of Vietnam, marriage and family relations involving foreign elements shall be respected and protected in accordance with Vietnamese law and treaties to which the Socialist Republic of Vietnam is a contracting party.
2. In their marriage and family relations with Vietnamese citizens, unless otherwise provided by Vietnamese law, foreigners in Vietnam have the same rights and obligations as Vietnamese citizens.
3. The Socialist Republic of Vietnam State shall protect the lawful rights and interests of Vietnamese citizens abroad in their marriage and family relations in accordance with Vietnamese law, the host country’s law, and international laws and practices.
4. The Government shall detail the settlement of marriage and family relations involving foreign elements in order to protect the lawful rights and interests of the parties and guarantee the implementation of Clause 2, Article 5 of this Law.
Laws to govern marriage and family relations
Article 122. Application of laws to marriage and family relations involving foreign elements
1. Unless otherwise provided by this Law, the legal provisions of the Socialist Republic of Vietnam concerning marriage and family are applicable to marriage and family relations involving foreign elements.
In case a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, the provisions of such treaty prevail.
2. In case this Law and other legal documents of Vietnam refer to the application of a foreign law, such foreign law shall apply, provided such application does not contravene the fundamental principles laid down in Article 2 of this Law.
In case a foreign law refers back to the Vietnamese law, Vietnam’s marriage and family law shall apply.
3. In case a treaty to which the Socialist Republic of Vietnam is a contracting party refers to the application of a foreign law, such foreign law shall apply.
Competence of state agencies
Article 123. Competence to settle cases and matters of marriage and family involving foreign elements
1. The competence to register civil status related to marriage and family relations involving foreign elements must comply with the law on civil status.
2. The competence to settle cases and matters of marriage and family involving foreign elements at court must comply with the Civil Procedure Code.
3. District-level People’s Courts of localities where Vietnamese citizens reside are competent to cancel illegal marriages, settle divorce cases, disputes over the rights and obligations of husband and wife, parents and children, recognition of parents, children, child adoption and guardianship between Vietnamese citizens residing in border areas and citizens of neighboring countries living in areas bordering on Vietnam in accordance with this Law and other Vietnamese laws.
Divorce by mutual consent involving foreign elements
Marriage and family relationships involving foreign elements means the marriage and family relation in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for establishing, changing, or terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad.
Divorce means the termination of the husband and wife relationship under a court’s legally effective judgment or decision.
Article 55 of the Law on Marriage and Family stipulates the conditions for the Court to recognize the consent of the couple to divorce, specifically:
When both partners ask for a divorce, the court must grant it if it determines that both parties are genuinely willing to do so and have agreed on the terms of the property distribution, child custody, support, and education based on protecting the wife’s and kids’ legitimate interests. The court will settle the divorce if the spouses are unable to agree or if their agreement does not protect the legitimate interests of the wife and children.
Article 127 of the Law on Marriage and Family 2014 on divorce involving foreign elements:
Article 127. Divorce involving foreign elements1. Divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency in accordance with this Law.
2. In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.
3. The settlement of a divorced couple’s immovables in a foreign country must comply with the law of the country where such immovables are located.
Common jurisdiction of Vietnamese Courts to resolve civil cases involving foreign elements
Article 469. Common jurisdiction of Vietnamese Courts to resolve civil cases involving foreign elements
According to the Civil Procedure Code 2015, Vietnamese Courts have the jurisdiction to resolve civil cases involving foreign elements in the following cases:
- Firstly, the divorce cases with the plaintiffs or the defendants being Vietnamese citizens or involved parties being foreigners who reside, work or live for a long term in Vietnam.
- Secondly, the defendant is an individual who resides, works or lives for a long term in Vietnam.
- Thirdly, the defendant is an agency or organization which is headquartered in Vietnam or the defendant is an agency or organization that has a branch or a representative office in Vietnam, applicable to cases related to the operation of the branch or representative office in Vietnam of such agency/organization.
- Fourthly, the defendant has properties in Vietnam.
- Fifthly, civil cases related to civil relations which are established, changed, or terminated in Vietnam, objects of which are properties in Vietnam or acts performed in Vietnam;
- Lastly, civil cases related to civil relations which are established, changed, or terminated in Vietnam but involve the rights and obligations of Vietnamese agencies, organizations and individuals or agencies, organizations and individuals that are headquartered or reside in Vietnam.
Thus, the Court’s jurisdiction to handle divorce proceedings by consent of a foreigner falls under the jurisdiction of the Provincial Court where one of the parties resides (permanently or temporarily resides).
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Frequently asked questions
In addition to the dossier for divorce, you need to present a copy of the child’s certificate of birth if you have children.
The looking after, caring for, raising, and education of children after divorce must comply with Articles 81, 82, 83, and 84 of the Law on Family and Marriage 2014.
The marriage relation shall terminate on the date a court’s divorce judgment or decision takes legally effective.