REGULATIONS ON UNILATERAL DIVORCE

According to marriage and family law, when there is request and reasonable grounds, husband or wife can file a lawsuit to the Court to settle the unilateral divorce in case the consensus cannot be reached with the other party.

Below is LawPlus’s synthesis about specific and detailed regulations on the requirements as well as the process of resolving unilateral divorce according to relevant law provisions.

>> Regulation on mutual consent divorce.

1.  Requesting for unilateral divorce

a.  Who has the rights to request?

According to Marriage and Family law, wife, husband, or both have the right to request the Court to resolve the divorce. The husband has no right to request a divorce in case the wife is pregnant, giving birth or nursing a child under 12 months old.

A parent or other relative also has the right to request the Court to settle a divorce when a spouse suffers from a mental illness or other illness that cannot be aware of and control his /her behavior and is the victim of domestic violence caused by their husband or wife, seriously affecting their life, health, and spirit.

b.  The basis of the request

According to law of marriage and family, one-sided divorce shall be considered if there is one of the following factors:

+ The spouse commits acts of domestic violence or seriously violates the rights and obligations of husband and wife causes the marriage to fall into a serious situation, the life together cannot last long, the purpose of the marriage cannot be achieved.

+ The spouse of the person declared missing by the Court requests the divorce.

+ In cases a parent or relatives of the spouses request for divorce of the spouses, the Court shall permit the divorce if the husband or wife commits domestic violence acts, which seriously affects the divorce, the life, health, and spirit of the other person.

2. Unilateral Divorce Procedure

a.  Divorce dossier

  • 02 original Divorce Petitions (follow the specified form).
  • Original Marriage certificate: In case of not having the original, contact with the civil status registration agency where the marriage took place for requesting copy of the extract from the original marriage certificate of the spouses that was registered and saved.
  • 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.

b.  The procedure

Step 1: Submit a unilateral divorce application and relevant documents to the competent court.

With regard to divorce, the litigant can authorize another people to submit the petition but is not allowed to authorize to participate in the proceedings on their behalf. If a parent or other relative requests the Court to settle the divorce, they are the representatives.

Step 2: The Court considers the petition.

Within 03 working days from the date receiving of the lawsuit petition and attachment, the Chief Justice of the Court shall assign a Judge to settle the case.

Within 05 working days from the date of receiving, the judge shall consider the lawsuit petition and request amendments and supplements to the lawsuit petition (if needed).

After receiving the lawsuit petition, accompanying documents and evidence, if deeming that the case falls under the court’s jurisdiction, the judge shall immediately notify the plaintiff to come to the Court and pay a court fee advance in case they are under the case of paying court fee advance.

Step 3: Paying the court fee advance

Within 7 days after receiving the court’s notice for the payment of the court fee advance, the petitioner must pay the court fee advance and submit to the Court the receipt of the court fee advance, expect for the case where litigators are exempt from or not required to pay court cost advances.

3. Competent court for handling unilateral divorce request

District court where the defendant resides and works. In case of not knowing the place of residence, working place or office of the defendant, the plaintiff may request the Province level Court  where the defendant last resides, works, has its office or where the defendant has property for settlement.

4.  Required time for handling unilateral divorce request

Within 03 working days from the day on which the case is accepted, the Judge shall notify in writing the plaintiff, the defendant, agencies, organizations or individuals with interests and obligations related to the settlement, the Procuracy of the same level that the Court has accepted the case.

Court’s trial preparation shall be 04 months, from the day on which the case is accepted. During this period, the Court shall hold a session for checking the handover, access, evidence publicity and mediation between the involved parties. Accordingly, depending on the case, the Judge will make one of the following decisions:

+ Recognize the agreements of the involved parties.

+ Temporary suspend the resolution of the civil case.

+ Suspend the resolution of the civil case.

+ Bring the case to trial.

The case where defendants have been duly summoned by the Court for the second time and are still intentionally absent shall be considered as unable to mediate. Accordingly, the Court shall make a minutes on unable to mediate and bring the case to trial according to general procedures. If the defendant is absent from the court trial without the request for trial in absence, the court shall proceed without the defendant.

Within 01 month from the date of the decision to bring the case to trial, the Court must open a court hearing; in case of a plausible reason, the time limit shall be 02 months.

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.

In case there is dispute over property, you shall be charged additional court fees corresponding to the ratio of assets, specifically:

The first instance court fee_EN

 

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 older, 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. If a parent who does not directly raise the child abuses visitation to obstruct or adversely affect the care, nurturing and education of the child, the person directly raising a child has the right to request the court to restrict the other person’s right to visit the child.

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.

7. Property

Divide property upon divorce

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…

The divided property, the yields, and profits from the separate property of each party after the division of the community property shall be the separate property of the husband or wife. The undivided property remains community 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.

b.  Community property

Community property are assets formed during the marriage (unless property regulated as separate).

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.

In cases where there are no proof that the disputed property is the separate property of each party, such property shall be considered as community property.

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 unilateral divorce according to Marriage and Family law and other related regulations. For detailed advice, please contact hotline +84268277399 or email info@lawplus.vn.

 

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