Pursuant to the Law on Marriage and Family 2014, in case both spouses agree to divorce and decide who will directly raise the children as well as divide the property after the divorce, you can carry out the procedure, applying for a divorce.
Table of Contents/Mục lục
1. Mutual Consent Divorce Procedurea. Divorce dossier
- 02 original Divorce Petitions (follow the specified form): The consenting divorce petition must be fully drafted as requested by the court.
- 01 original Marriage certificate: The marriage certificate provided shall be original, not be erased or torn.
- 01 Certified copy of the spouses’ household registration book;
- 01 Certified copy of the spouses’ ID card/passport;
- 01 Certified copy of the children’s birth certificate;
- 01 Certified copy of other documents and evidence proving community/separate property such as: Certificate of land use right to own houses and other properties attached to land (red book); vehicle registration; savings book…
- 01 Certified copy of other documents as prescribed by law.
Step 1: Submit a mutual divorce application and relevant documents to the competent court.
Step 2: The Court considers the application.
Within 03 working days after receiving the petitions and attached documents and evidence, The Tribunal Presidents may assign a Judge to settle the petitions.
The Judge could request the plaintiff to amend or supplement within 07 days from the date receiving the application.
In case the petition and attached documents and evidence are considered qualified, the judge shall notify the petitioner for payment of the fee due to civil matter settlement request within 05 working days after receiving the notice of payment, unless there is exemption, reduction or that person does not have to pay the fee in accordance with the provisions of law on fees.
Step 3: Pay the charge advance.
For requests of mutual consent divorce recognition, child support agreements, property division, husband and wife may agree on the payment of charge advance, except for cases of exemption or non-payment as prescribed by law. In case husband and wife cannot reach an agreement on the charge advance payer, each person must pay half of the charge advance.
3. Courts competent to settle divorce agreements
District People’s Courts in which one of the parties that divorce in consent, agree on parenting or property division resides, works.
4. Time for settlement of consent divorce
Within 03 working days since the date of accepting the petition, the court must notify in writing to the petitioner and the person with related interests and obligations to the civil matter.
The Court shall consider the petition within 01 months since the Court approves the petition.
During this period, the Court shall conduct mediation in order to help the couple reunite.
- If the mediation is successful: The judge decides to suspend the resolution of the request.
- If the mediation is unsuccessful: The judge shall issue a decision to recognize the consent for divorce and the agreement of the litigants under the following conditions:
- The two parties are completely voluntary for divorce;
- The two parties have agreed on the division or non-division of community property, the duty of care, nurture, and education their children;
- The agreement must ensure the rights of your wife and children.
In case of unsuccessful mediation and the involved parties cannot reach agreement on the division of assets, parenting duty, the courts may suspend the settlement of civil cases on the recognition of consent for divorce, child custody agreements, assets division and acceptance of the cases for settlement.
5. Court fee
Pursuant to Resolution No. 326/2016/UBTVQH14, if there is no dispute over property, exemption, reduction, collection, payment, management and the court fees, charges, Court of First Instance fee shall be VND 300,000 if there is no dispute over property.
In case there is dispute over property, you shall be charged additional court fees corresponding to the ratio of assets, specifically:
6. Child Custody
Spouses agree on the person directly raising the child (physical custody), the obligations and rights of each party after the divorce towards the child; in case the parties cannot reach an agreement, the court may decide the physical custody of the child to a party with the consideration of their child interests in all aspects; if the child is from 07 years old, his/her opinion about whether to live with whom shall be taken into consideration.
After divorce, non-custodial parent (who do not directly raise the child) still earns the right and obligation for visiting their child and shall not be obstructed.
Non-custodial parent is obligated to child support. The amount of child support is based on the income, actual ability of the person paying the support and his/her essential needs; in case there is no agreement, the spouses may request the courts to settle.
Support can be paid monthly, quarterly, semi-annually, annually, or once.
The parties may agree to change the method of support, suspense the support in case the person with the supporting obligation has fall into a difficult economic situation without being able to pay the support; if they cannot reach an agreement, they may request the courts to settle for them.
Divorced spouses have the right to make their agreements on all issues, including the division of property. If the parties cannot reach an agreement but have a request, the court shall consider and decide on the matrimonial property regime.
a. Separate property
Separate property of husband or wife includes property that each person owns before marriage; assets are inherited or donated separately during the marriage period, property which is established ownership under the judgment,… Land use rights belong to husband/wife after marriage are community property, except for cases where spouses are inherited or donated separately, or through transactions by separate property. The spouse’s separate property is owned by that person. In case of merging or mixing between separate property and community property, if husband/wife request for the division of assets, he/she may earn the value of the assets which he/she has contributed to, unless agreed otherwise.
Community property are assets formed during the marriage (unless property regulated as separate). Community property of husband and wife shall be divided in half but the following factors shall be taken into account to determine the ratio of matrimonial assets are divided to the husband/wife: The circumstances of the family and the wife/husband; The contribution of husband and wife to the creation, maintenance and development of community property; Protect the legitimate interests of each party in production, business and occupation so that the parties have conditions to continue working to generate the income; The fault of each party in violating the rights and obligations of marriage;…
c. Husband/wife’s property in the community property of the family
If the husband and wife’s property in the community property of the family is not determined, part of the common property of the family is divided to the spouse based on the contribution of that person to the creation, maintenance and development of the community property as well as into the spouses’ life. The parties can agree on the division or ask the court to resolve it.
In cases the husband and wife live with family, the husband and wife’s property in the community property of the family can be determined according to the portion, when divorced, the husband and wife’s property portions are extracted from community property of the family to be divided according to the principle of community property division for divorce.
The court must determine whether the spouse has property rights, obligations to a third party in order to bring a third person into the proceedings as a person with related rights and obligations. In case the husband or wife have property rights and obligations towards the third party who have request to settle, the courts must settle when dividing the community property. In case the husband and wife have obligations to the third party that do not request settlement, the courts may guide them for settlement by another case.
When resolving property division for divorce, the court must consider protecting the legitimate rights and interests of wife and minor children.
Above is LawPlus’s analysis regarding the latest regulations on mutual consent divorce. For detailed advice, please contact hotline +84268277399 or email firstname.lastname@example.org.