Property division after divorce involving foreign elements in Vietnam

Nowadays, with a very open regime of entry-exit of nations’ territories, people have many chances to reside and work abroad. On the other hand, this leads to the appearance of relationships involving foreign elements due to the residence and social communication of “foreigners” in host countries. Those relations might make it hard for agencies and citizens to settle problems or disputes because of the laws’ conflict. In this article, LSX legal firm provides: “Property division after divorce involving foreign elements in Vietnam”

Legal grounds

• Law on Marriage and Family 2014
• Resolution 01/2003/NQ-HDTP

Marriage relations involving foreign elements

The Law on Marriage and Family 2014 defines:

• Marriage means the relation between husband and wife after they get married.
• Divorce means the termination of the husband and wife relation under a court’s legally effective judgment or decision.
• 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 foreign law, or that relation arises abroad or the property related to that relation is located abroad.

Accordingly, a divorce involving foreign elements means the divorce between a foreigner or an overseas Vietnamese and a Vietnamese; between foreigners residing in Vietnam; or between Vietnamese citizens but the bases for establishing, changing, or terminating the marriage relation governed by foreign law, or that relation arises abroad or the property related to that relation located abroad.

In this article, we will focus on the marriage relations between foreigners and Vietnamese citizens or foreigners only. In addition to the Law on Marriage 2014, Resolution 01/2003/NQ-HDTP also provides provisions regarding divorce involving foreign elements.

Divorce between Vietnamese persons and foreigner married abroad

Under resolution 01/2003/NQ-HDTP, for cases where Vietnamese persons residing abroad married foreigners and their marriages recognized in Vietnam, now such Vietnamese persons return home and their foreign spouses apply for a divorce:
a/ Where the foreign spouses currently living abroad apply for a divorce from the Vietnamese persons who still bear Vietnamese nationality and are residing in Vietnam, the Courts shall accept to settle these cases but in applying laws thereto, they should distinguish the following:

• If foreigners are citizens of the countries with which Vietnam has signed legal assistance agreements containing provisions different from those of the 2000 Marriage and Family Law, the Courts shall apply the provisions of such legal assistance agreements to settling their cases; if such agreements contain no different provisions, the Courts shall apply the 2000 Marriage and Family Law.
• If foreigners are citizens of the countries with which Vietnam has not yet signed legal assistance agreements, the Courts shall apply the 2000 Marriage and Family Law to settle their cases.
• In divorce cases, the settlement of properties being immovables situated abroad shall comply with the laws of the countries where exist such immovables.
  b/ For cases where Vietnamese citizens residing in the country apply for a divorce from foreigners residing abroad
  If Vietnamese citizens apply for a divorce from foreigners who have returned to their countries after their marriages and kept no contact with the Vietnamese citizens, the Courts shall accept to settle their cases.

However, the Law on Marriage and Family 2014 now having effect, so, the agencies will apply it to settle the case instead of the Law on Marriage and Family 2000.

Vietnamese citizens residing in Vietnam apply for divorce with foreigners residing abroad

According to resolution 01/2003/NQ-HDTP, if a Vietnamese citizen marries a foreigner, but the foreigner has returned home and no longer has contact with the Vietnamese citizen, now that the Vietnamese citizen applies for a divorce, the court shall accept the settlement.
Under Article 18 of the 2000 Marriage and Family Law, husband, and wife have the obligation to take care of and help each other, together build up a happy family.

Therefore, if the foreign spouse returns to his/her country without fulfilling the husband-wife obligations as prescribed, the period when he/she has no contact with his/her spouse being a Vietnamese citizen is one year or longer, and his/her spouse, their next of kin and competent bodies (the Vietnamese diplomatic mission in the foreign spouse’s country, competent authorities of the country where the foreign spouse is a citizen) also have no information nor address of the foreign spouse after investigating and verifying the address he/she declared when carrying out entry/exit procedures and the address he/she declared in the marriage certificate when making marriage registration, this case shall be regarded as the case where the respondent deliberately conceals his/her address and, therefore, divorce shall be accepted.
Similarly, the Law on Marriage and Family 2014 now having effect, so, the agencies will apply it to settle the case instead of the Law on Marriage and Family 2000.

Property division after divorce involving foreign elements in Vietnam

According to clause 1, Article 59 of the Law on Marriage and Family 2014, the settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. If the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
On the other hand, according to Article 47 of the Law on Marriage and Family 2014, the spouses must make this agreement in writing before their marriage with notarization or certification.

Common property

The court shall divide the common property into two, taking into account the following factors:

• Circumstances of the family, husband and wife.
• Each spouse’s contributions to the creation, maintenance and development of the common property. The housework done in the family by a spouse shall be regarded as income-generating labor.
• Protecting the legitimate interests of each spouse in their production, business, and career activities to create conditions for them to continue working to generate incomes.
• Each spouse’s faults in the infringement of spousal rights and obligations.

The common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner who receives the property in kind with a value bigger than the portion he/she has the right to receive shall pay the value difference to the other.

Separate property

Separate property of a spouse shall be under his/her ownership, except for separate property already merged into the common property in accordance with the Law on Marriage and Family.
A spouse who requests division of separate property merged into or mixed with common property shall receive the value of his/her property contributed to common property, unless otherwise agreed by husband and wife.

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