Divorce procedures with foreign elements under Vietnamese law

by NguyenThiThuTrang

In the process of carrying out procedures for a consensual divorce or a unilateral divorce with a foreigner; Or how are cases with foreign elements more likely to have legal problems than domestic divorce cases and divorce procedures with foreign elements? Lawyer X advises and answers some specific problems through the article “Divorce procedures with foreign elements under Vietnamese law” below:

Legal grounds

Civil Procedure Code 2015

Law on marriage and family 2014

What is the divorce procedure with foreign elements?

According to the provisions of “Article 469. General jurisdiction of Vietnamese courts in settling civil cases involving foreign elements“, Vietnamese courts have jurisdiction to settle civil cases involving foreign elements. in the following cases:

a) The defendant is an individual who permanently resides, does business or lives in Vietnam;

b) The defendant is an agency or organization headquartered in Vietnam or the defendant is an agency or organization with a branch or representative office in Vietnam, for cases related to the branch’s operations; representative office of such agency or organization in Vietnam;

c) The defendant has property in the Vietnamese territory;

d) The divorce case in which the plaintiff or defendant is a Vietnamese citizen or the involved parties are foreigners residing; business; live permanently in Vietnam;

đ) Civil relations cases that are established; change; termination of such relationship occurred in Vietnam; the subject matter of such relationship is property in the Vietnamese territory or work performed in the Vietnamese territory;

e) Civil relations cases which are established or changed; termination of such relationship occurs outside the territory of Vietnam but is related to the rights and obligations of the agency; Vietnamese organizations and individuals or having their head office or residence in Vietnam.”

Divorce procedures with foreign elements

According to the provisions of Article 127 of the Law on Marriage and Family No. 52/2014/QH13 of the current National Assembly on Divorce involving foreign elements:

“first. The divorce between Vietnamese citizens and foreigners; between foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency in accordance with this Law.

In case the party being a Vietnamese citizen does not permanently reside in Vietnam at the time of requesting divorce; the divorce shall be settled according to the law of the country where the husband and wife reside together; if they do not have a common place of permanent residence, the settlement shall be in accordance with Vietnamese law.
The settlement of foreign immovable property upon divorce shall comply with the laws of the country where such immovable property is located.”

The divorce proceedings are handled as follows:

Divorce file with foreign elements

Marriage certificate: Original marriage certificate. If the original marriage certificate is not available, it can be replaced with a copy issued by the state agency where the marriage registration is made;
Notarized or certified copies of the children’s birth certificates;
Documents of both parties include: Certified copy of ID card; Certified copy of household registration;
Divorce application: The divorce application is made by the non-resident party in Vietnam and consularly legalized and then transferred to the permanent resident in Vietnam to sign. Regarding common property and common children, the two parties can agree to settle or ask the court to settle and specify in the divorce application.

Application submission location

Provincial People’s Courts; Cities directly under the central government where the involved parties permanently or temporarily reside.

Settlement time

Article 203 of the 2015 Civil Procedure Code stipulates that the maximum time to prepare for the trial of a divorce case is 04 months; if the case is complicated or has an objective obstacle, the extension may be extended for no more than 2 months. Within 01 month from the date of issuing the decision to bring the case to trial; The court must open a court session; in case of good cause; This period is 2 months. In fact, the time to resolve a divorce case can be shorter or longer than the time prescribed by law depending on the nature of each case.

Divorce from her husband who is illegally residing in a foreign country

According to Article 56 of the Law on Marriage and Family 2014, divorce at the request of one party:

When a spouse requests a divorce but the conciliation at the court is unsuccessful, the court shall grant the divorce if there are grounds that the husband and wife commit acts of domestic violence or seriously violate the rights and obligations of the spouse. husband and wife make the marriage fall into a serious situation, life together cannot be prolonged; the purpose of marriage is not achieved.”

Documents to be prepared when a unilateral divorce has foreign elements

– Petition for divorce or Application for recognition of consent to divorce (according to the Court’s form);

The original marriage certificate or a certified true copy of the original by a competent state agency if the original is lost.
– Identity card or Passport; Certified copy of household registration;

A copy of the child’s birth certificate (if there are children);

Certified copies of vouchers and documents on ownership of related properties;
– Documents proving that one party is abroad (if any).

Divorce procedures when one party is abroad

Step 1: The petitioner for divorce/request for recognition of consensual divorce writes a petition for divorce/Application for recognition of consensual divorce and sends a set of documents to a competent Court, including:

According to Clause 3, Article 35 and Article 37 of the Civil Procedure Code 2015; Provincial-level People’s Courts have jurisdiction.
If the divorce takes place with a Vietnamese citizen residing in the border area with a citizen of a neighboring country residing in the border area with Vietnam; then the jurisdiction belongs to the district-level People’s Court, according to Clause 4, Article 35 of the 2015 Civil Procedure Code.
Step 2: The court examines the file; If the dossier is complete and valid, the Court will send a notice of advance payment of the court fee within 7-15 days.

Step 3: Proceed to pay the civil court cost advance at the competent Civil Judgment Enforcement Sub-department and submit the court fee advance receipt to the Court.

Step 4: The court proceeds to settle the case according to the civil procedure case settlement procedure.

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Frequently asked questions

Jurisdiction to settle divorce when one party is abroad?

Regarding the jurisdiction to settle a divorce when one party is abroad: In the case of an amicable divorce, the competent court will be the provincial court where either party resides. According to the provisions of Article 11 of the Law on Residence in 2020:
“Article 11. Citizens’ place of residence
Citizens’ places of residence include places of permanent residence and temporary residence.
If the place of permanent residence or temporary residence cannot be determined, the citizen’s place of residence is the current place of residence determined according to the provisions of Clause 1, Article 19 of this Law.

Divorce files with foreign elements in the case of consent divorce?

– Application for consent to divorce (according to the form of each Court);
Marriage registration certificate (original);
Household book, ID card (copy);
Copy of the child’s birth certificate (if there are children)
Other documents and evidences evidencing common property (if any).

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