In modern society, many people of different nationalities get married. However, for various reasons, they decided to divorce. The resolution of divorce between people of different nationalities is quite complicated because the legal system governing each person’s rights and obligations is different. Therefore, in order to solve the problem of divorce with foreign elements, one must carefully study the relevant legal issues. In this article, LSX legal firm provides: “Dossier to divorce for foreigner in Vietnam”
- Law on Marriage and Family 2014
- Civil Procedure Code 2015
Marriage relations regarding foreign elements
The current Marriage and Family Law, as well as its guiding documents, provide no specific provisions for the concept of marriage involving foreign elements but instead explain the marriage relationship in general.
Under Private International Law, marriage and family relations involving foreign elements include marriage and family relations in the following situations:
- To begin with, at least one of the partners is a foreigner or an overseas Vietnamese.
- Secondly, although partners are Vietnamese citizens, the grounds for establishing, changing, or terminating the relationship are governed by foreign law.
- Thirdly, the relationship occurs abroad, or the property associated with that relationship is located abroad.
The marriage relationship with foreign elements, as defined by the Law on Marriage and Family 2014, includes the following relationships: the husband-wife relationship involving foreign elements, the alimony relationship involving foreign elements, the guardianship relationship involving foreign elements, and the divorce relationship involving foreign elements.
Application of laws to marriage and family relations involving foreign elements
The regulation governing the application of the law in marriage and family is the choice of law rule in foreign relations under Vietnamese private international law. In particular, Article 122 of the Law on Marriage and Family 2014 on the 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 apply 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.
- 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.
- 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.”
In case the Vietnamese government signs an international treaty that governs marriage and family relations, the competent agencies must follow the treaty’s rules, even if Vietnamese law says otherwise.
On the other hand, if Vietnamese law or international treaties lead to the application of foreign laws, the competent agencies must follow the regulations of those laws.
Divorce including foreign element
According to Clause 14, Article 3 of the Law on Marriage and Family 2014:
- Divorce means the termination of the husband and wife relationship according to a legally effective judgment or decision of a court.
Besides, under Article 127 of this law, the 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 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 located.
Persons entitled to request a divorce
People have the right to request settlement of divorce including:
- Husband or wife or both has or have the right to request a court to settle their divorce.
- A parent or another next of kin of a spouse has the right to request a court to settle a divorce when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.
- A husband has no right to request a divorce during his wife’s pregnancy, giving birth, or nursing an under-12-month child.
Divorce by mutual consent
When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two have the will to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children. If the spouses fail to reach agreement or have reached an agreement which fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.
Unilateral divorce at the request of one spouse:
- When a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable.
- When the spouse of a person declared missing by a court requests a divorce, the court shall permit the divorce.
- For a request for a divorce under Clause 2, Article 51 of the Law on Marriage and Family 2014, a court shall permit the divorce if it has grounds to believe that the domestic violence committed by one spouse seriously harms the life, health, or spirit of the other.
Dossier to divorce for foreigner in Vietnam
To request a divorce involving foreign elements in Vietnam, you need to prepare the following documents:
- Application for divorce or Application for recognition of consent to divorce (according to the court’s form).
- The original marriage certificate (if any), in case the original marriage certificate is lost, a copy certified by a competent state agency must be submitted.
- Identity card or Passport (certified copy).
- A copy of the child’s birth certificate (if having children).
- Certified copies of vouchers and documents on property ownership (if having property dispute).
- Documents proving that one party is abroad (if any).
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This article contains information about “Dossier to divorce for foreigner in Vietnam” In recent years, we have supplied effective legal advice to businesses and individuals at reasonable prices and with efficient results. We always update and keep our operations and services in line with the law by adhering to legal principles. If you need any further information from the firm’s solicitors, please contact LSX Law firm: +84846175333 or Email: email@example.com
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Frequently asked questions
For a couple who has not registered their marriage but requests a divorce, the court shall accept the case and declare non-recognition of their spousal relationship under Clause 1, Article 14 of the Law on Marriage and Family; and shall settle any children- or property-related requests according to Articles 15 and 16 of the Law on Marriage and Family.
When reasonable grounds to believe that a spouse commits domestic violence or seriously violates the rights and obligations of the husband or wife, which seriously degrades the marriage and renders their common life impossible and the marriage goals unattainable.
When the spouse of a person declared missing by a court requests a divorce
In the absence of foreigners, the time for divorce settlement is approximately 24 months.