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When married life is no longer passionate and conflicts arise that cannot be reconciled, couples will think about divorce. If the two parties cannot agree to divorce by mutual consent, one party can still apply to the Court for a unilateral divorce. So how are the order and procedures for unilateral divorce regulated according to current law? Let's find out with OTIS LAWYERS in the article below!
Legal Basis
Law on Marriage and Family 2014
What is unilateral divorce?
Clause 14, Article 3 of the 2014 Law on Marriage and Family stipulates "Divorce is the termination of marital relations according to a legally effective judgment or decision of the Court."
Accordingly, unilateral divorce, also known as divorce at the request of one party, is the case in which only one party wants to end the marital relationship but the other party does not want to. Or it is also possible that the couple cannot agree on child custody and property division after divorce, also called a case of unilateral divorce. Specifically, unilateral divorce is the following cases:
When a husband or wife requests a divorce but conciliation at the Court fails, the Court will grant the divorce if there is evidence that the husband or wife has committed domestic violence or seriously violated the rights and obligations of the husband or wife cause the marriage to fall into a serious state, life together cannot last, and the purpose of marriage is not achieved.
In case the spouse of the person declared missing by the Court requests a divorce, the Court will grant the divorce.In case there is a request for divorce from parents or relatives, the Court will grant the divorce if there is evidence that the husband or wife has committed domestic violence that seriously affects life and health, the spirit of the other person.
Thus, it can be seen that the wife, husband, parents or relatives of the husband and wife all have the right to request a unilateral divorce. This is to protect the legal rights and interests of husband and wife.
Note: According to Clause 3, Article 51 of the 2014 Law on Marriage and Family, the husband does not have the right to request a divorce in case the wife is pregnant, has given birth or is raising a child under 12 months old.
Conditions for unilateral divorce
Based on Article 56 of the 2014 Law on Marriage and Family, the Court will grant divorce in cases where there are grounds to believe that the couple's marriage is in a serious state, their life together cannot last, and the purpose is Marriage cannot be achieved due to:
- One of the two has committed domestic violence;
- Spouses seriously violate the rights and obligations of husband and wife (love, loyalty, respect, care, care, help each other, live together unless otherwise agreed)...
Thus, from the above grounds, the husband, wife, parents or relatives of the couple can request a unilateral divorce.
Unilateral divorce procedure
Step 1: Submit a lawsuit requesting a unilateral divorce at the competent People's Court
The dossier includes the following documents:
- Unilateral divorce application according to the form
- Marriage registration (original); If it is lost or damaged, you can request a copy...
- Certified copy of ID card/Citizen identification card... of husband and wife; family's household registration book;
- A certified copy of the child's birth certificate if there are children together;
- If there is common property and request division of common property upon divorce, prepare documents proving ownership of this common property...
The divorce petition is filed at the district People's Court where the defendant resides. In cases where the defendant's place of residence or work is unknown, the plaintiff may request the Court where the defendant last resided, worked or where the defendant has assets to resolve the matter (Article 40 of the Code). civil proceedings in 2015).
In case of divorce with foreign elements: if one party is residing abroad or has assets abroad; or one party is a foreigner, the Provincial People's Court has jurisdiction to resolve the matter. In this case, the file will be filed at the Provincial People's Court where the defendant resides.
Step 2: The court accepts the application
Within 03 working days from the date of receiving the petition, the Chief Justice of the Court assigns a Judge to consider the petition.
Within 05 working days from the date of assignment, the Judge must consider the petition and make one of the following decisions:
If the dossier is not complete, the Judge will notify the plaintiff in writing stating the issues that need to be amended and supplemented within a time limit set by the Judge but not exceeding 1 month; In special cases, the Judge can extend the extension but not more than 15 days. After amending and supplementing according to regulations, the Court will accept the case.
Carry out procedures for accepting the case according to normal procedures or according to summary procedures if the case meets the conditions to be resolved according to summary procedures specified in Clause 1, Article 317 of the 2015 Civil Procedure Code;
If the plaintiff files a lawsuit without the Court's jurisdiction, the Judge will decide to transfer the lawsuit to the competent Court and notify the plaintiff.
If the case does not fall under the Court's jurisdiction, the petition will be returned.
If the file is valid, the Court sends a notice to the plaintiff to pay the court fee advance. The court decides to accept the unilateral divorce petition from the time the plaintiff submits the court fee advance receipt.
The result of the Judge's application processing must be noted in the application receipt book and notified to the plaintiff via the Court's electronic information portal (if any).
Step 3: The court conducts mediation
Conciliation procedures at Court are mandatory procedures before bringing a case to trial, except for cases that cannot be conciliated, cannot be conciliated, or are resolved according to summary procedures.
If the conciliation is successful: the Court makes a record of successful conciliation and after 07 days if the parties do not change their opinions, the Court issues a decision recognizing the conciliation as successful and this decision takes effect immediately and cannot be appealed. appeal.
If conciliation fails: The court must also make a record of unsuccessful conciliation and then decide to bring the case to trial.
Step 4: Open the first instance court hearing
If conciliation fails and the Court finds that the conditions for divorce are met, the Court will open a First Instance trial. The court will send summons to the parties and clearly notify the time and location of the first instance court session.
Step 5: Issue a divorce judgment, execute the judgment or appeal the judgment to the appellate level
If conciliation is not successful and it is deemed that the conditions for divorce are met, the Court will issue a judgment to terminate the couple's marital relationship.
Within 15 days from the date the Court issues the First Instance judgment, if the litigants do not follow the appeal procedure, the judgment will take effect and be enforced.
Time to resolve unilateral divorce
According to the provisions of the 2015 Civil Procedure Code, the time limit for resolving a unilateral divorce is 4 months. In complicated cases, it can be extended by 2 months.
Specifically:
Divorce settlement at first instance level: 4 to 6 months. If the dispute is complicated, the time may be longer.
Divorce settlement at the appellate level: 3 to 5 months. If there is a first instance judgment that is appealed or protested against.
Division of property upon divorce
Based on Article 59 of the 2014 Law on Marriage and Family, which stipulates the principles of property division upon divorce, property is resolved as follows:
In the case of a marital property regime according to law, the property settlement is agreed upon by the parties; If no agreement can be reached, at the request of the spouse or both spouses, the Court will resolve the matter according to the provisions of the 2014 Law on Marriage and Family.
In case the husband and wife's property regime is according to an agreement, the property settlement upon divorce shall apply according to that agreement; If the agreement is not complete and clear, the corresponding regulations in the 2014 Law on Human Resources and Family shall be applied to resolve the matter.
The common property of husband and wife is divided in kind; if it cannot be divided in kind, it is divided according to value; Any party receiving property in kind that has a value greater than the portion they are entitled to must pay the other party the difference.
The separate property of a husband or wife belongs to that person, except in cases where the separate property has been merged into common property according to the provisions of this Law.
In case there is a merger or mixing of separate property with common property and the husband and wife request to divide the property, they will be paid the value of their property contributed to that property, except in cases where If the couple has another agreement.
Custody upon divorce
Article 81 of the Law on Marriage and Family 2014 stipulates the obligation to look after, care for and educate children after divorce as follows:
After divorce, parents still have the rights and obligations to look after, care for, raise and educate their minor children, adult children who have lost their civil act capacity or are unable to work and do not have property to support oneself in accordance with the provisions of this Law, the Civil Code and other relevant laws.
Husband and wife agree on who will directly raise the child, and each party's obligations and rights to the child after divorce; In case no agreement can be reached, the Court will decide to hand over the child to one party to directly raise based on the child's interests in all aspects; If your child is 7 years old or older, your child's wishes must be considered.
Children under 36 months of age are assigned to the mother to directly raise, unless the mother is not qualified to directly look after, care for, raise, and educate the child or the parents have other agreements consistent with the child's interests. child.
Thus, both parties can agree on child custody rights. If no agreement can be reached, the Court will consider and decide to give custody to one party so that the child has the best interests.
>>> See more: Child custody rights after divorce
Court fees during divorce
In a unilateral divorce case, in addition to the marital relationship requirements, the couple will usually request division of marital property. Therefore, according to the provisions of Resolution No. 326/2016/UBTVQH14, if a divorce case has no merit (i.e. there is no dispute over property), the court fee is 300,000 VND.
On the contrary, if the divorce case is meritorious (i.e. there is a dispute over property), then based on the value of the divided property, the divorce court fee will be from 300,000 VND or more. In particular, the highest for assets over 04 billion VND, the court fee is 112 million VND plus 0.1% of the asset value exceeding 04 billion VND.
Above is our advice on unilateral divorce. We hope that this will be a useful reference source for readers when they want to learn about the law on divorce.
>>> See more: Cost of unilateral divorce
Divorce consulting service of OTIS LAWYERS
OTIS LAWYERS is always proud to be a professional unit in the field of divorce consulting. With a team of highly specialized lawyers, extensive experience and dedication to our customers, we believe we will provide our customers with the best, most professional service at a reasonable cost and time. Complete the procedure as quickly as possible. We commit that all customer information is absolutely confidential and customer interests are always put first.
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