Hello LSX, after 5 years of living together, my husband and I are not compatible, so we will go to court for divorce soon. As far as I know in divorce, there must be more favorable regulations for women, I wonder what those rights are, so that I can refer to it in my upcoming divorce process. . To answer the question “Women’s rights in divorce according to Vietnam law” and to understand some issues surrounding this question. Please refer to our articles below.
Legal grounds
- Law on Marriage and Family 2014
What is divorce?
According to the provisions of Clause 14, Article 3 of the Law on Marriage and Family 2014, the definition is as follows:
Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of a court.
Women’s rights in divorce according to Vietnam law
First, a husband cannot ask for a divorce while his wife is pregnant
Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of the Court. Accordingly, Article 51 of this Law clearly states that the following people have the right to request divorce settlement:
– Husband and wife (in case of consent divorce);
– Spouse (in case of unilateral divorce);
– Father, mother, other relatives (when one of the spouses due to mental illness or other diseases cannot perceive and control his/her own behavior and is also a victim of domestic violence by his/her husband, caused by their wives, seriously affecting their lives, health, and spirits).
In particular, Clause 3, Article 51 affirms:
A husband is not entitled to request a divorce in case his wife is pregnant, giving birth or raising a child under 12 months old
According to the above provisions, in order to protect the interests of women who are pregnant, giving birth or raising children under 12 months of age, the Law restricts the husband’s right to request a divorce in the above cases.
However, it is worth mentioning that, although the Law stipulates that a husband is not allowed to divorce when his wife falls into one of the above cases, if the marriage purpose is not achieved, the common life cannot be prolonged… then the wife is in a relationship. Pregnant, giving birth, raising a child under 12 months old has the right to request a divorce.
Thus, it can be seen that the Law only does not allow a husband to divorce, but does not prohibit a wife who is pregnant, giving birth, or raising a child under 12 months of age from requesting a divorce.
Second, when divorced, the wife stays at home as a housewife and is still an income earner
During divorce, the husband and wife’s contribution to the creation, maintenance and development of the common property is one of the factors affecting the division of the husband and wife’s common property.
In principle stated in Clause 2, Article 59 of the Law on Marriage and Family, common property of husband and wife will be divided in half but based on family circumstances, husband and wife, effort and contribution… Especially, this regulation affirms Labor of husband and wife in the family is considered as income labor.
At the same time, this is also the provision stated in Clause 2, Article 16 of the Law on Marriage and Family. Specifically, housework and other jobs related to maintaining a common life are considered income workers.
In particular, there is no distinction between family labor and income earners (according to Clause 1, Article 29 of the Law on Marriage and Family).
Thus, it can be seen that if a wife only does housework at home, she is still considered an income earner and is not discriminated against her husband working outside. Therefore, when divorce, property division, the wife’s contribution to housework is equal to the effort contributed when her husband works outside.
Third, the wife can directly raise children under 36 months old
When divorce, not only the marriage relationship ends but the relationship between father, mother and child also changes. The most obvious is when the parents divorce, the child will only live with one of the parents.
Accordingly, although parents still have the rights and obligations to look after, care for, raise and educate their children, they will either be agreed upon by the two parties or will be decided by the Court who can directly raise their children.
According to Article 81 of the Law on Marriage and Family, husband and wife can agree on who directly raises their children, obligations and rights of each party after the divorce towards their 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.
In particular, if the child is 07 years old or older, the child’s wishes must be considered.
At the same time, for children under 36 months old, the age that needs the mother’s care and upbringing the most, the Law affirms:
Children under 36 months old are assigned to their mothers to directly raise them
However, if the mother is ineligible to care for, raise and educate the child, or because the parents have another agreement in accordance with the child’s interests, the child may be assigned to the adoptive father.
At that time, the person who does not directly raise the child will have the obligation to support the child and respect the right to live with the other person of the child. At the same time, the person who does not directly raise the child has the right and obligation to visit the child without being hindered by anyone.
Thus, it can be seen that, after a divorce, the child under 36 months old will be directly taken care of by the mother, unless otherwise agreed or the mother cannot afford to create the best development environment for the child. do not have enough conditions to raise and take care of children.
What is the divorce process like?
For unilateral divorce
The process will be performed according to the following steps:
Step 1: Accept divorce petition (suit petition). The spouse – who wants to get a unilateral divorce must prepare all dossiers, papers, documents and evidences on domestic violence acts (if any) of the other person to submit to the competent court (if any). Mentioned above).
Step 2: Mediation. After receiving the unilateral divorce petition, the Court will consider whether to accept and accept the divorce case. If it is found that there are grounds to consider the divorce petition unilaterally, request the applicant to pay the court fee in advance and conduct conciliation.
If the conciliation is successful, the court shall issue a decision to recognize the successful conciliation; otherwise, the court shall bring the case to trial.
Step 3: Open the first instance court. After the trial, the Court will issue a judgment to terminate the marriage relationship between husband and wife.
For an amicable divorce
Consent divorce will be done according to the following steps:
Step 1: Accept the application. Husband and wife prepare the above documents and submit them to the competent Court.
Step 2: Prepare to consider the petition and open a public meeting to resolve the request for recognition of the consent for divorce. During this period, the Court will consider the consent divorce petition, the grounds for terminating the marital relationship and issue a notice to pay the advance fee.
After the husband and wife pay the fee advance, the Court will open a public meeting to settle the request for recognition of the consent of the divorce.
Step 3: Make a decision to recognize the consensual divorce. After conciliation is unsuccessful, the Court will issue a decision to recognize the divorce. On the contrary, if the conciliation is successful, the Court will suspend the settlement of the civil matter.
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Please see more
- Right to pick up children after divorce under Vietnam law
- Regain custody of children after divorce under Vietnam law
- Proving separate property before marriage under Vietnam law
Frequently asked questions
According to Articles 55 and 56 of the Law on Marriage and Family 2014, there are two types of divorce:
Agreed divorce
This is the form when both husband and wife decide to divorce and have reached an agreement on the division of property, looking after, raising, caring for and educating children. Accordingly, when applying for a voluntary divorce, both husband and wife must sign it.
Unilateral divorce
Unilateral divorce is also known as divorce at the request of one party. This is a form in which a husband or wife requests a divorce when they see that their married life can no longer be maintained, the marital relationship is in serious condition due to domestic violence or because the other person violates his/her obligations…
The legal consequences of a divorce are the inevitable results that the husband and wife will have to bear when the marriage relationship ends. The legal consequences of a divorce on the personal relationship between husband and wife are as follows:
When the divorce settlement court’s decision or judgment takes effect, the personal relationship between husband and wife terminates.
The personal rights and obligations between husband and wife will automatically cease. At the same time, other rights and obligations as prescribed by the Law on Marriage and Family between the two parties will also no longer exist.
From the time when the judgment or decision of the Court on divorce settlement takes legal effect, that individual is single. They can completely marry another person without any strings attached from the other party.
According to the provisions of Article 35 of the 2015 Civil Procedure Code, the district-level People’s Court is the competent place to settle divorce procedures at first instance.
In case of consent divorce
If the husband and wife agree to divorce, they can agree to go to the Court where the wife or husband resides to carry out the procedures.
Within 03 working days from the date of receipt of the petition and enclosed documents and evidences, the Chief Justice of the Court will assign the Judge to settle.
For the case of unilateral divorce
Article 39 of the Civil Procedure Code 2015 stipulates that the Court where the defendant resides and works has the authority to settle according to first-instance procedures disputes over marriage and family. Therefore, in the case of unilateral divorce, the court where the settlement is competent will be the place where the defendant resides and works.
Conclusion: So the above is Women’s rights in divorce according to Vietnam law. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
