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Divorce when both are abroad according to Vietnamese law

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Divorce with foreign elements is one of the complicated procedures. How is the divorce procedure with foreign elements done? How are the procedures, processes as well as problems related to divorce when both spouses are abroad? Here, let’s find out some specific issues with Lawyer X through the article “Divorce when both are abroad according to Vietnamese law” below!

Civil Procedure Code 2015

Law on marriage and family 2014

Divorce with foreign elements

Article 127 of the Law on Marriage and Family 2014 provides for divorce involving foreign elements, including specific cases such as:

Divorce between Vietnamese citizens and foreigners;

Divorce between foreigners who permanently reside in Vietnam when they so request.

Competence to settle divorce with foreigners

According to the provisions of Vietnam’s Law on Marriage and Family in Clause 2 of Article 81, the right to raise children upon divorce is determined as follows:

Husband and wife agree on who to directly raise children and obligations; the rights of each party after the divorce towards the child; in case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.
Children under 36 months old shall be assigned to their mothers to directly raise them, unless the mothers are not eligible to directly look after them; take care; feed, take care; the child’s education or the parents have other agreements in accordance with the child’s interests.
However, in the case of foreign elements; according to the provisions of Article 127; Law on Marriage and Family 2014 on divorce with foreign elements:

Article 127. Divorce involving foreign elements

Divorce between Vietnamese citizens and foreigners and 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 the divorce request, 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 is subject to the laws of the country where such immovable property is located.
According to Articles 469 and 470 of the Civil Procedure Code 2015 stipulate; The competence to settle divorces involving foreign elements belongs to the provincial-level People’s Courts.

In the special cases specified in Clause 4, Article 35 of the 2015 Civil Procedure Code; 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, the jurisdiction belongs to the district-level People’s Court.

Thus, in case the husband and wife permanently reside in a foreign country; not permanently residing in Vietnam; Divorce will be resolved according to the laws of the host country. Under normal circumstances; This authority belongs to the People’s Court of the province, specifically:

Article 127 of the Law on Marriage and Family 2014; Articles 469 and 470 of the 2015 Civil Procedure Code stipulate that the jurisdiction to settle divorces with water elements belongs to the provincial People’s Courts. Specifically:
If the party being a Vietnamese citizen does not permanently reside in Vietnam at the time of requesting a 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 is subject to the laws of the country where such immovable property is located.

The court will grant divorce if there are grounds that the husband or wife commits acts of domestic violence or seriously violates the rights and obligations of the husband and wife, causing the marriage to fall into a serious state. common cannot last, the purpose of marriage is not achieved. This she will have to prove to the Court about the conflict of husband and wife. The fact that the husband and wife are too far away, leading to the inability to care for each other is also a reason to be considered. You should emphasize this reason that each person in one country cannot make a happy married life.

In the case of an amicable divorce

About the application for divorce consent includes: (The dossier can be submitted directly at the Court or sent by post)

Application for consent for divorce (according to the Court’s form/form);
Marriage registration certificate (original);
Household registration book, spouse’s identity card (certified copy);
Child’s birth certificate (certified copy);
Other documents and evidences evidencing common property such as: Certificate of Land Use Rights (red book); Vehicle registration; passbook… (certified copy).

Procedure for consent divorce

Submit the application for consent for divorce at the People’s Court of the district where you reside; spouse’s work;
The court examines the application and issues a notice of court fee advance payment after receiving the lawsuit petition and valid documents;
Pay the first-instance civil court cost advance at the district-level Judgment Execution Sub-Department and return the court fee advance receipt to the Court;
After the court opens the mediation session; within 07 days from the date of unsuccessful conciliation (without changing the divorce decision) if the parties do not change their opinions, the Court issues a decision to recognize the unanimity of the divorce.
Regarding the place of settlement, according to Clauses a and b, Article 39 of the 2015 Civil Procedure Code, it stipulates:

a) The court where the defendant resides or works; if the respondent is an individual or where the respondent is domiciled; if the defendant is an agency or organization competent to settle civil disputes according to first-instance procedures; Marriage and family; business, commerce, and labor specified in Articles 26, 28, 30 and 32 of this Code
b) The involved parties have the right to reach an agreement among themselves in writing to request the Court of the place of residence; the plaintiff’s work; if the plaintiff is an individual or the place where the plaintiff’s office is located, if the plaintiff is an agency or organization that settles civil disputes; Marriage and family; business; trade and labor specified in Articles 26, 28, 30 and 32 of this Code;

According to the above regulations, the consent to divorce is according to point h; Clause 2; Article 39 of the Civil Procedure Code 2015; whereby the competent court is the district-level people’s court where one of the parties consents to divorce or raise children; property division upon divorce of residence; work competently to handle requests for recognition of consent for divorce; raising children; division of property upon divorce.

Unilateral divorce case

The Law on Marriage and Family 2014 stipulates the right to divorce at the request of one party as follows:
Article 56. 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 for the wife’s disobedience; husband commits domestic violence or serious violations of rights; wife’s obligations; husband causes the marriage to fall into serious condition; cohabitation cannot last, the purpose of marriage is not achieved.
In case the spouse of the person declared missing by the Court requests a divorce, the Court shall grant the divorce.
In case there is a request for divorce according to the provisions of Clause 2, Article 51 of this Law, the court shall grant the divorce if there are grounds for the husband; the wife commits domestic violence that seriously affects the chronic; health; the spirit of the other.
Subject to the above and with the information you provide; when filing for divorce you need to prove that your husband committed domestic violence or serious violations of rights; wife’s obligations; husband causes marriage to fall into serious condition, life together cannot last; The purpose of marriage is not achieved so that the court can accept the divorce petition.

Unilateral divorce proceedings are carried out as follows:

Records include:

Divorce application (Ref: Unilateral divorce form)
Original Marriage Certificate (or copy and reason for not having the original)
Copies of the permanent and temporary residence papers of the plaintiff and the defendant;
A copy of the National Identity Card or a copy of the passports of the plaintiff and the respondent;
Documents proving property: Certificate of land use right, house ownership…
Copies of the children’s birth certificates.

Steps to proceed with the unilateral divorce procedure:

Step 1: Submit the petition for divorce at the competent People’s Court;
Step 2: Receive the application processing result;
Step 3: Pay first-instance civil court cost advance at a competent civil judgment enforcement agency and return the receipt of unilateral court cost advance to the Court;
Step 4: The court will convene to take testimony, conciliate and conduct procedures in accordance with the Civil Procedure Law.
Step 5: In case the court does not accept the divorce request, the divorce petitioner has the right to appeal to the immediate superior court for appellate trial in accordance with the law.

Place of resolution:

Clauses a and b, Article 39 of the 2015 Civil Procedure Code stipulates:

a) The court where the defendant resides; employment, if the respondent is an individual or where the respondent is domiciled; if the defendant is an agency or organization competent to settle civil disputes according to first-instance procedures; marriage and family, business; Commerce; labor specified in Articles 26 and 28; 30 and 32 of this Code
b) The involved parties have the right to reach an agreement among themselves in writing to request the court of the place where the plaintiff resides or works; if the claimant is an individual or the place where the plaintiff is located; if the plaintiff is an agency or organization to settle civil disputes; Marriage and family; business, commerce and labor specified in Articles 26, 28, 30 and 32 of this Code;

Settlement time

Within 5 working days from the date of receipt of the lawsuit petition, the court must process the case, ie notify the involved parties to pay the court fee advance; The court accepts the case when the petitioner submits to the court a receipt for the payment of the court fee advance. The new point here is that the processing time is shortened to only 5 working days (the old law was 30 days).
Within 4 months from the date of acceptance; depending on the case, the court issues one of the following decisions: Recognition of the parties’ agreement (reunification or consent to divorce); Temporarily suspend the settlement of the case; Suspension of the settlement of the case; Bring the case to trial (if one party does not agree to divorce or there is a dispute over children and property).
Within 5 working days; from the date of issuing the decision to recognize the parties’ agreement, the court must send that decision to the involved parties.
Within 1 month from the date of issuance of the decision to bring the case to trial, the court must open a court session.
After 15 days from the date of trial, if there is no appeal; protest; judgment will come into force.
As such, normally; total time for divorce settlement in case of consent divorce is within 130 days; unilaterally divorce within 170 days.

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Frequently asked questions

How long does it take to get a divorce from a foreigner?

An amicable divorce
Processing time is up to 02 months from the date of receiving the application.
Unilateral divorce
The time limit for trial preparation is from 4 to 6 months from the date of acceptance of the case;
The time limit for opening a court session is from 1 to 2 months from the date of issuance of the decision to bring the case to trial.

Divorce when registering marriage abroad, how to solve?

According to Article 469 of the 2015 Civil Procedure Code:
“1. Vietnamese courts shall handle civil cases involving foreign elements in the following cases:
d) The divorce case in which the plaintiff or defendant is a Vietnamese citizen or the involved parties are foreigners residing, doing business or living long-term in Vietnam;”
Thus, in this case, you can ask the Vietnamese Court to resolve the divorce for you. However, the involved parties must be present in Vietnam at the time of filing for divorce or at the time the court accepts the file. Or you can file a file with a foreign court where the couple has registered their marriage to be resolved in accordance with the law of that country.

Conclusion: So the above is Divorce when both are abroad according to Vietnamese law. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com

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