Under marriage and family law, a spouse can request a unilateral divorce if valid grounds exist and mutual agreement is impossible.
LawPlus provides a detailed overview of legal requirements and procedures for unilateral divorce, ensuring clarity and compliance with regulations.
Table of Contents/Mục lục
1. Requesting for unilateral divorce
a. Who has the right to request?
According to Marriage and Family law, the 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 the 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 causing 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 the divorce of the spouses,the Court shall permit the divorce if the husband or wife commits domestic violence acts,which seriously affect 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 have the original,.contact the civil status registration agency where the marriage took place for requesting a copy of the extract from the original marriage certificate of the spouses.that were registered and saved.
- The household registration book of the spouses(01 Certified copy).
- The ID card/passport of the spouses (01 Certified copy).
- The birth certificate of child (01 Certified copy).
- 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 other 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. REGULATIONS ON UNILATERAL DIVORCE
Within 03 working days from the date received 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 in 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,.except 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. REGULATIONS ON UNILATERAL DIVORCE
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 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:
REGULATIONS ON UNILATERAL DIVORCE
6. Child custody
Spouses can agree on child custody, parental responsibilities, and post-divorce rights. If no agreement is reached, the court assigns custody based on the child’s best interests. Children aged seven or older may express their preference regarding living arrangements.
After divorce, the non-custodial parent retains visitation rights, which must not be obstructed. If visitation is misused to hinder or negatively impact the child’s well-being, the custodial parent may request court intervention to limit visitation rights.
The non-custodial parent is required to provide child support. The amount depends on their income, financial ability, and essential needs. If spouses cannot agree, they may seek court assistance.
Support payments can be made monthly, quarterly, semi-annually, annually, or in a lump sum. If the paying parent experiences financial hardship, spouses may negotiate a change in payment terms or request the court’s decision.
7. Property
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. During the marriage period, a spouse inherits or receives donated assets separately. Ownership of a property is established 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 has his/her seperate property. In case of merging or mixing between separate property and community property, if husband/wife’s request for the division of assets, he/she may earn the value of the assets to which he/she has contributed to, unless agreed otherwise.
b. Community property
Community property includes assets acquired during marriage unless classified as separate property.
Land use rights acquired after marriage qualify as community property unless obtained through inheritance, personal gifts, or separate assets.
If neither spouse can prove an asset is separate, it is treated as community property.
The court typically divides community property equally but considers various factors to determine each spouse’s final share.
These include family circumstances, contributions to asset growth and maintenance, protection of each party’s business or career, and any violations of marital obligations.
c. Husband/wife’s property in the community property of the family
If a couple’s shared property within the family is unclear, the court divides it based on each spouse’s contribution to its creation, maintenance, and development. The parties can agree on the division or request court intervention.
If the couple lives with family, their share of the communal property is determined. Upon divorce, their portion is extracted and divided according to legal principles.
The court must assess property rights and obligations involving third parties. If a spouse has commitments to a third party requesting settlement, the court must address them. If no request is made, the court may advise separate resolution.
During divorce property division, the court prioritizes protecting the rights and interests of the 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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