Hi Lawyer, my husband is Korean. When we studied abroad, we were married and had a daughter together. However, now that I have returned home and my husband is still in Korea, our feelings have faded. Now my husband and I want to divorce. I want to ask “Jurisdiction to settle divorce with foreigners in Vietnam” Please help me to consult a lawyer. I would like to express my sincere thanks to Lawyer.
Legal grounds
- 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.
Jurisdiction to settle divorce with foreigners in Vietnam
According to the provisions of the 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 directly raises children, obligations and rights of each party after divorce towards children; 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 of age are assigned to their mothers to directly raise them, unless the mothers are not eligible to directly look after, care for, raise and educate the children or the parents have other agreements in accordance with the interests of the children. of children.
However, for cases involving foreign elements, according to the provisions of Article 127 of the Law on Marriage and Family 2014 on divorce involving foreign elements:
Article 127. Divorce involving foreign elements
1. 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.
2. 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.
3. The settlement of foreign immovable property upon divorce shall comply with the laws of the country where such immovable property is located.
According to Articles 469 and 470 of the 2015 Civil Procedure Code, the jurisdiction to settle divorces involving foreign elements belongs to the People’s Courts of the province.
In special cases, the jurisdiction belongs to the district-level People’s Court:
In the special case specified in Clause 4, Article 35 of the Civil Procedure Code 2015, if the divorce takes place with a Vietnamese citizen residing in the border area with a citizen of a neighboring country residing in the same area, In border areas with Vietnam, the jurisdiction belongs to the district-level People’s Courts.
Thus, in case the husband and wife permanently reside in a foreign country and do not permanently reside in Vietnam, the divorce will be resolved according to the laws of the host country. In normal cases, this authority belongs to the People’s Court of the province.
How to settle a divorce with foreign elements?
Pursuant to the provisions of Articles 28 and 29 of the 2015 Civil Procedure Code, which stipulates the disputes and claims on marriage and family that fall under the court’s jurisdiction.
Clause 3, Article 35 of the 2015 Civil Procedure Code, disputes and requests specified in Clause 1 (civil, marriage and family disputes) and Clause 2 of this Article where the involved parties or property in Foreigners or need to entrust justice to the consular offices of Vietnam abroad, to foreign courts that are not under the jurisdiction of the district-level People’s Courts.
– Jurisdiction by court level:
Based on the provisions mentioned above, the jurisdiction to settle a divorce involving foreign elements will belong to the People’s Court of the province.
– Jurisdiction of the Court by territory:
Pursuant to the provisions of Article 37 of the 2015 Civil Procedure Code, the jurisdiction of the territorial courts for disputes over marriage and family is determined to be the Court where the defendant resides, works, and works. job, if the defendant is an individual or where the defendant is headquartered, if the respondent is an agency or organization.
In case the defendant cannot determine the place of residence, work or head office in Vietnam, the plaintiff has the right to choose a court to settle the dispute.
Is it possible to get an amicable divorce when the husband is abroad?
When both spouses voluntarily sign the divorce papers; there are property agreements; children and related matters; then you can proceed with the divorce proceedings.
It can be said that the real voluntariness of husband and wife is a condition for the Court to recognize a consensual divorce.
Therefore, the Court will consider a divorce if all three of the following factors are met:
The husband and wife voluntarily divorce and sign the divorce papers.
+ The custodian and child support rate has been agreed; This agreement must ensure the interests of both parties and children.
+ The issue of property division has been agreed; have not yet reached an agreement but did not ask the court to settle the property. In case the husband and wife have reached an agreement on property issues and wish to be recognized by the Court, they can write in an application to request the Court to recognize this agreement.
Competence to settle amicable divorce when husband is abroad?
Pursuant to Point a, Clause 1, Article 37 of the 2015 Civil Procedure Code:
“Civil, marriage and family, business, commercial and labor disputes specified in Articles 26, 28, 30 and 32 of this Code, except for disputes falling under the jurisdiction of the Courts to settle disputes district-level people prescribed in Clauses 1 and 4, Article 35 of this Code”.
Thus, the provincial court will handle divorce cases that are not accepted by the district court.
And point h, Clause 2, Article 39 of the Civil Procedure Code, the competence to settle a divorce with a foreign element belongs to the People’s Court of the province where one of the consenting parties to the divorce resides and works.
Thus, in this case, the authority competent to settle the divorce agreement will belong to the provincial court.
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Please see more
- Law on divorce with foreigners in Vietnam
- Application for divorce from foreigners in Vietnam
- Proving separate property before marriage under Vietnam law
Frequently asked questions
Records include:
– Application for divorce or application for recognition of consent for divorce (according to the Court’s form).
The original of the 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/Citizen identity card or passport (certified copy).
A copy of the child’s birth certificate (if there are children).
– Certified copies of vouchers and documents on property ownership (if there is a property dispute).
– Documents proving that one party is abroad (if any).
In case the two parties registering their marriage under foreign law want to get a divorce in Vietnam, they must obtain a consular legalization of the marriage registration certificate and carry out the procedures for noting it in the register at the Department of Justice before submitting an application for divorce in court.
The time to settle divorce cases involving foreign elements is 4-6 months from the date of acceptance according to the provisions of the Civil Procedure Code 2015.
Conclusion: So the above is Jurisdiction to settle divorce with foreigners in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
