At present, with the development of society, more and more Vietnamese citizens go abroad to settle, study, work or foreigners come to live and work in Vietnam. The number of Vietnamese citizens marrying foreigners has also increased gradually over the years. However, many people wonder about the procedures as well as the current legal regulations on divorce with foreign elements. Jurisdiction how? How to divide assets and child custody? Applying foreign law or Vietnamese law?.... OTIS LAWYERS would like to share with readers about issues related to divorce with foreign elements in Vietnam in the article below.
What is divorce with foreign elements?
Divorce
Termination of a husband and wife relationship according to a legally effective judgment or decision of the Court at the request of a spouse or both. The right to request a divorce is a personal right, attached to the husband and wife, so the husband and wife can do it by themselves, but cannot transfer or authorize another person.
Divorce with foreign elements
A divorce between a Vietnamese citizen and a foreigner or Vietnamese residing abroad; between foreigners living in Vietnam; between Vietnamese people, but the grounds for establishing, changing or terminating such relationship are according to foreign law or the property related to such relationship is abroad.
Jurisdiction to settle divorce involving foreign elements
According to the provisions of Articles 28 and 29 of the Civil Procedure Code 2015, the settlement of marriage and family disputes or requests for marriage and family are within the jurisdiction of the Court.
According to Clause 3, Article 35 and Article 37 of the 2015 Civil Procedure Code, the jurisdiction to settle a divorce with foreign elements belongs to the Province-level People's Court.
In the special case specified in Clause 4, Article 35 of the Civil Procedure Code 2015, if the divorce is between a Vietnamese citizen residing in the border area with a citizen of a neighboring country residing in the same area, the jurisdiction belongs to the district-level People's Courts.
Applicable law
The divorce settlement between Vietnamese citizens and foreigners, between foreigners permanently residing in the territory of Vietnam shall be settled in accordance with the provisions of Vietnamese law on marriage and family, specifically according to the provisions of the Law on Marriage and Family of Vietnam 2014 and related documents.
In case a Vietnamese citizen does not permanently reside in Vietnam at the time of the divorce request, the divorce shall be settled according to the law of the country where the husband and wife reside together; if they do not have a common place of permanent residence, the settlement shall be in accordance with Vietnamese law. The settlement of foreign immovable property upon divorce is subject to the laws of the country where such immovable property is located.
Order and procedures for divorce with foreign elements in Vietnam
Step 1
Submit valid dossiers and documents on divorce application to the competent People's Court.
A divorce application with foreign elements includes the following documents:
- Application for divorce (Application for unilateral divorce or Application for the People's Court to recognize the consent of the divorce);
- Copy of ID card or personal identification paper (Passport, Citizen Identification Card);
- Household registration (with a true copy of the original);
- The original marriage certificate, in case the original marriage certificate is lost, a copy certified by a competent state agency must be submitted and clearly stated in the petition;
- Copy of birth certificate (if you have children);
- Copies of documents on property ownership (if there is a dispute);
If the two parties get married in Vietnam, and then the spouse exits to a foreign country (the address cannot be found), there must be a local authority's certification that one has exited;
If both parties register their marriage under foreign law and want to get a divorce in Vietnam, they must consularly legalize the marriage registration certificate and complete the procedures for making notes in the register at the Department of Justice before filing for divorce. In case the parties do not make notes but still want to divorce, the divorce application must clearly state the reason for not noting the marriage.
Step 2
If the court accepts the application, considers it in accordance with its competence and law, the court shall issue a notice of payment of the court fee advance to the applicant. The applicant shall pay the court fee advance and return the court fee advance receipt to the Court. The court accepts the divorce case and issues a notice of acceptance of the case to the procuracies of the same level and the defendant (related persons).
Step 3
The court shall handle the case according to legal procedures.
Note: The law does not require the divorce petition to go through mediation at the grassroots (commune, ward People's Committee, agency's Trade Union...). However, in practice, many courts still require this mediation step.
Time limit for settlement
The processing time varies from case to case.
- Consensus divorce involving foreign elements: From 03 to 04 months;
- Unilateral divorce with foreign elements: The first instance level is about 4 to 6 months.
- In case of divorce in the absence of foreigners: From about 24 months (due to the court having to carry out judicial entrustment procedures)
However, in fact, the time to settle a divorce case involving foreign elements may be longer if the defendant is absent, there is a dispute over property and child custody, etc.
Court fees for divorce with foreign elements in Vietnam
Pursuant to Resolution 326/2016/UBTVQH14 stipulating the rates of collection, exemption, reduction, collection, payment, management and use of court fees and court fees promulgated by the National Assembly Standing Committee, the court fee level marriage without dispute over property is 300,000 VND. In case there is a dispute over property, the court fee shall be calculated as a percentage of the value of the property requested by the Court to divide.
Custody upon divorce
For divorce cases with foreign elements handled by Vietnamese courts, child custody rights are specified in Clauses 2 and 3, Article 81 of the Law on Marriage and Family 2014:
Husband and wife reach an agreement on who will directly raise children, obligations and rights of each party after divorce towards their children; in case the husband and wife cannot reach an agreement, the People's Court settling the case shall decide to assign the child to one party to directly raise it based on the child's interests in all aspects; if the child is full 07 (seven) years old or older, the child's wishes must be considered when deciding.
In case, the child under 36 months old shall be assigned to the mother to directly raise, unless there is evidence to prove that the mother is not qualified to directly look after, care for, nurture and educate the child or the father or mother have other agreements in accordance with the interests of the children.
Division of property upon divorce
The division of property after divorce is based on the principle of agreement. In case the two parties cannot reach an agreement, the Court shall settle according to the following principles.
First, the private property of any party is owned by that party, only the common property of husband and wife can divide property upon divorce.
Second, the property jointly identified as husband and wife is divided according to the principle of halving, but the Court may consider each party's circumstances, property status, and contributions. into the creation, maintenance and development of this property to decide on the division.
Third, the labor of husband and wife in the family is called income labor.
Fourth, protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income.
Fifth, protect the legitimate rights and interests of wives and minor or adult children who are disabled, have lost their civil act capacity, are unable to work and have no property to support themselves.
Sixth, each party's fault violates the rights and obligations of husband and wife.
Seventh, in the event of a merger or amalgamation of separate property with common property and the spouses request to divide the property for divorce. In the process of division, whichever party receives a portion of the greater property, must pay the other party the difference in value.
Principles of responsibility for joint property obligations of husband and wife upon divorce
The payment of common property obligations of husband and wife shall be agreed upon by the husband and wife, if they cannot reach an agreement, they shall request the Court to settle specifically:
First, obligations arising from the transaction established by the husband and wife by agreement, the obligation to compensate for damage for which the husband and wife are jointly liable according to the law.
Second, obligations performed by husband and wife to meet the basic needs of the family.
Third, obligations arising from the possession, use and disposition of common property.
Fourth, obligations arising from the use of separate property to maintain and develop the common property or to generate the main source of income for the family.
Fifth, obligations to compensate for damage caused by the child, which according to the provisions of the Civil Code, the parents must compensate.
Sixth, other obligations as prescribed by relevant laws.
Notes on divorce with foreigners
If the wife is pregnant or the child is under 12 months old, the husband does not have the right to request a unilateral divorce;
It is necessary to confirm that all issues of child custody, alimony, and property division have been agreed (or agree to separate the request for division of marital property into another case after the divorce);
In case of divorce in absentia, the time period is from 12 to 24 months (due to the procedure for judicial entrustment);
Judicial entrustment fee from 5 to 7 million VND;
Documents sent from abroad must have consular legalization and translation.
Divorce with foreign elements in Vietnam consulting service of OTIS LAWYERS
The service of performing divorce procedures with foreign elements in Vietnam, legal issues related to marriage and family is one of the areas of law in which we have extensive experience. We, with a team of professional lawyers and legal consultants, are committed to consulting and providing the best and most time-saving solutions for you.
When you come to OTIS LAWYERS, you will experience the best service, because we:
Having a team of experienced and professional divorce lawyers and consultants, we carry out the fastest procedures.
Support clients with procedures from consulting, drafting, filing at court, paying court fee advance. Thereby reducing travel time for clients.
The quote is a package, committed to no additional costs.
Contact us immediately for timely support and consultation:
OTIS AND PARTNERS LAW FIRM
Office address: K28 - Group K, Lane 68 Trung Kinh, Yen Hoa Ward, Cau Giay District, Hanoi
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