Divorce is a complicated process that requires careful consideration and planning. When both spouses are not in Vietnam, the process can become even more challenging. Whether you are a Vietnamese citizen living abroad or a foreigner married to a Vietnamese national, navigating the legal landscape of divorce can be difficult. In this article, LSX legal firm provides information regarding: “Divorce while both spouses are not in Vietnam”
Legal grounds
- Civil Procedure Code 2015
- Law on Marriage and Family 2014
Competence to settle divorce cases
Clause 25, Article 3 of the Law on Marriage and Family 2014 stipulates that marriage and family relation 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.
Article 127 of the Law on Marriage and Family 2014 provides for cases considered as divorce relations involving foreign elements and related regulations as follows:
- A competent Vietnamese agency shall settle a divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam in accordance with this Law.
- 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.
- 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.
Articles 469 and 470 of the Civil Procedure Code 2015 stipulate that Vietnamese Courts have jurisdiction to settle divorce cases in which the plaintiff or defendant is a Vietnamese citizen or the involved parties are foreigners residing, working, and residing permanently in Vietnam.
When both parties do not reside in Vietnam, only if one party involved is a Vietnamese citizen does the Courts of Vietnam have the jurisdiction to settle the divorce.
Which Court has the authority to settle divorce cases?
Section 37. Jurisdiction of People’s Courts of Provinces
1. People’s Courts of provinces shall have the jurisdiction to settle according to first-instance procedures the following disputes:
a) Civil, marriage and family related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code, except for disputes falling under the jurisdiction of the district-level people’s Courts as provided for in Clause 1 and Clause 4 Article 35 of this Code;
b) Civil, marriage and family related, business, trade or labor petitions prescribed in Articles 27, 29, 31 and 33 of this Code, except for petitions falling under the jurisdiction of the district-level people’s Courts as prescribed in Clause 2 and Clause 4 Article 35 of this Code;
c) Disputes and petitions prescribed in Clause 3, Article 35 of this Code.
2. The People’s Courts of provinces shall have the jurisdiction to resolve according to first instance procedures the civil cases falling under the jurisdiction of the People’s Courts of districts as provided for in Article 35 of this Code, which are taken up by the People’s Courts of provinces for settlement when necessary or at the request of People’s Courts of districts.
Article 28. Marriage and family-related disputes falling under the courts’ jurisdiction
1. Divorces, disputes over child rearing or property division upon divorces; post-divorce division.
2. Disputes over division of spousal common property during their marriage.
3. Disputes over change of post-divorce child custodian.
4. Disputes over determination of fathers or mothers for children; or determination of children for fathers or mothers.
5. Disputes over alimonies.
6. Disputes over childbirth using the childbirth assistance technique or surrogacy for humanitarian reasons.
7. Disputes over child custodian, division between couples living like husbands and wives without marriage registration or between spouses illegally cancel the marriage registration.
8. Other disputes relating to marriage and family, except for cases within the jurisdiction of other agencies and organizations as prescribed by law.
Accordingly, the People’s Courts of Provinces have the authority to settle divorce cases. Submit the divorce dossier and accompanying documents to the People’s Court of the province where the last person resided in Vietnam before going abroad.
Dossier for divorce
A dossier of application for recognition of consensual divorce includes the following documents:
- Application for divorce (according to the Court’s form).
- Marriage registration certificate (original).
- Household registration book, ID card (copy).
- Child’s birth certificate (copy – if any).
- Other documents and evidence proving common property (if any).
A dossier of application for unilateral divorce includes the following documents:
- Application for divorce (according to the Court’s form).
- Original Marriage Certificate (if any).
- Identity card or Passport; Household registration (certified copy) (if the other party’s identity papers are not available, prepare papers of the divorcee).
- Copy of Child’s Birth Certificate (if any).
- Certified copies of vouchers and documents on property ownership (if there is a property dispute).
- Documents proving that one party is abroad (if any).
If both spouses are not in Vietnam, you can send the dossier to the court by post. The filling date of the petition is counted from the date the litigant submit it at the court or the date of postmark of the place of sending.
Can you divorce without attendance?
Clause 4, Article 85 of the Civil Procedure Code 2015 provides for representatives as follows:
Article 85. Representatives
4. The proxy representatives as defined in the Civil Code shall be the proxy representatives in the civil procedures.
For the divorce, the involved parties must not designate any other persons to participate in the procedure on their behalf. If parents or other relatives of the involved parties petition the Courts to resolve the divorce cases as prescribed in clause 2 Article 51 of the Law on marriage and family, they shall be the representatives.
Accordingly, the involved parties in a divorce case can not authorize another person to act on their behalf to participate in the divorce procedures. So, you can not authorize a lawyer or a representative to carry out the divorce procedure on your behalf. Therefore, at least one party has to return to Vietnam to settle the divorce.
In case of divorce in the absence of both husband and wife, the court may not open a trial but must issue a decision to terminate the settlement of the case.
Legal service of LSX Legal Firm
LSX legal firm provides legal services to clients in various legal areas. To make your case convenient, LSX will perform:
- Legal advice related to new regulations;
- Representing in drafting and editing documents;
- We commit the papers to be valid, and legal for use in all cases;
- Represent to submit documents, receive results, and hand them over to customers.
With a team of experienced, reputable, and professional consultants, The firm is always ready to support and work with clients to solve legal difficulties.
Furthermore, using our service, you do not need to do the paperwork yourself; We guarantee to help you prepare documents effectively and legally.
Also, you will not have to waste time preparing the application, submitting application, or receiving results. At those stages, we will help you do it smoothly.
After all, LSX provides the service with the desire that customers can experience it the best way. Additionally, we guarantee the cost to be the most suitable and economical for customers.
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See more
How long does it take to divorce a foreigner in Vietnam?
Steps for guardianship foreign elements registration in Vietnam
Divorce application form for foreigners in Vietnam
Frequently asked questions
It will take about 1 to 3 months or more (excluding the trial time) to carry out steps from applying the petition for divorce to the time of decision-making to open a trial to resolve the case.
In particular, it may take longer than the time prescribed by law for many reasons. Usually, it may take 1-6 months to get a divorce.
As immovable estate, the settlement of a divorced couple’s real estate in a foreign country must comply with the law of the country where such immovables are located.
The most common grounds for unilateral divorce in Vietnam include adultery, desertion, violence or abuse, drug addiction, mental illness, or irreconcilable differences.
Conclusion: So the above is Divorce while both spouses are not in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
