Divorce is the termination of the marriage relationship by the judgment, a legally effective decision of the Court. However, the divorce process is not always smooth and may not always have the consent of both parties. In cases where one spouse does not want to divorce or is absent, can the other party proceed with the divorce? Let’s clarify this through the following article with Law Plus.
Table of Contents/Mục lục
1. Cases of divorce
According to Articles 55 and 56 of the current Law on Marriage and Family, there are 2 cases of divorce: Divorce by mutual consent and divorce at the request of one party (unilateral divorce):
1.1 Divorce by mutual consent occurs when both spouses voluntary request a divorce, and they have agreed on issues such as child custody, support, joint marital property, etc. In this case, they have the right to request the Court to.recognize the divorce by mutual consent.
1.2 Divorce at the request of one party is carried out when:
1.2.1 One spouse has grounds based on domestic violence, serious violations of the rights and obligations.of the spouse, leading to the marriage falling into a serious situation.where cohabitation is not possible, and the purpose of the marriage cannot be achieved. If one spouse requests the Court to resolve the divorce and reconciliation at.the Court is not successful, the Court will settle the divorce at the request of one party.
1.2.2 In the case of a spouse of the person declared missing by the Court requesting a divorce, the Court will settle the divorce.
1.2.3 The father, mother, or other relatives parties have the right to request.the Court to resolve the divorce when one spouse is mentally ill or suffers from other diseases that impair their.awareness and control of their behavior, and at the same time, is a victim.of domestic violence caused by their spouse, seriously affecting their life, health, and spirit.
In this article, LawPlus only analyzes the case of “one spouse does not want to divorce.or is absent,” falling within the scope of section 1.2.1 mentioned above.
2. Determining the causes of divorce
2.1 Marriage falling into a serious situation: guided by point a.1, Section 8 of Resolution 02/2000/NQ-HDTP:
– Husband and wife do not love, respect, care for, and help each other like someone who.only knows their own duties, leaving the wife or husband alone to live how they want to live, with their relatives or.relatives agencies, organizations, reminders, and conciliation many times.
– Either the husband or wife consistently engages in abusive behavior, such as frequent.physical violence, or other actions that insult the honor, dignity, and reputation of each other.
– Either the husband or wife is not faithful to each other, engaging in extramarital.relationships, despite being reminded and advised by the spouse, their relatives, or by agencies or organizations.
2.2 Unachieved marriage objectives: as instructed in point a.3, Section 8 of Resolution 02/2000/NQ-HDTP.
Accordingly, when one spouse is suffering from the consequences.mentioned above, they have the right to request the Court to.settle the divorce for the marriage relationship to be terminated.
3. Can divorce be authorized to someone else?
The right to divorce cannot be transferred or delegated to another individual.to represent in litigation, as it is the personal right of each individual. Therefore, both the husband and.wife must directly participate. (According to Clause 4, Article 85 of of the Civil Procedure Code 2015)
However, one spouse has the right to hire a lawyer to help expedite the.process, protect legitimate and just rights and interests, and save time and effort.
4. Divorce procedure in case of absence of one party
The Law on Marriage and Family in 2014 stipulates that divorce must go through.the reconciliation process as provided in Article 54. The procedure for one party’s absence in.divorce is carried out according to the process stipulated in the Civil Code 2015 as follows:
(1) Submit the divorce lawsuit documents to the competent People’s Court;
(2) The competent People’s Court examines the lawsuit documents as stipulated by law;
(3) Within 8 days, the competent People’s Court responds with the settlement results. If the petition is valid, the competent People’s Court issues a notice of temporary advance.payment of fees as prescribed by law.
(4) Make a temporary advance payment for the fee at the competent authority.and submit the receipt for the temporary advance payment to the competent People’s Court.
(5) The competent People’s Court issues a notice of case acceptance and proceeds with the case settlement according to the provisions of the Civil Procedure Code 2015.
During the process of resolving the above case, the competent People’s Court will carry out the procedures.for issuing, serving, and notifying procedural documents to the parties involved (both the wife and the husband).as provided in Chapter X of the Civil Procedure Code 2015.
In the case where one party, either the wife or the husband, deliberately refuses to divorce and.does not appear in court, the competent People’s Court will carry out the procedure of publicly posting the procedural.documents as prescribed in Article 179 of the Civil Procedure Code 2015. The public posting will be carried out at:
– Posting the original document at the Court’s headquarters, the People’s Committee at the commune.level where the individual resides or where the individual’s last residence is, or where the office or the last office of the institution is located, served, and notified;
– Posting a copy at the place of residence or the last residence of the individual, or where the.office or the last office of the institution is located, served, and notified;
The deadline for public posting of procedural documents is 15 days from the date of posting.
In conclusion, according to the provisions of the law, divorce can be carried out at the.request of one party without necessarily having the consent of the other party.
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