Divorce By Mutual Consent In Viet Nam

The husband and wife who wish to divorce by mutual consent need to agree with each other regarding:

1. Terminating the marriage relationship;

2. Dividing the common properties and assets (if any);

3. Taking care and nurturing the common child(ren) based on ensuring the legitimate interests of the wife and child(ren) (if any);

4. Resolving the common debts (if any).

In case one of these elements above is not discussed and agreed upon by the husband and wife, the divorce by mutual consent in Vietnam cannot happen and the Court will not issue the Decision for the recognition of voluntary divorce for the Husband and Wife.

I. What documents do the parties need to prepare for mutual divorce in Viet Nam?

According to Article 369 of the Code of Civil Procedure No. 92/2015/QH13 (“CCP”), the Wife and Husband are required to prepare and provide the following documents and proofs:

1. The Petition;

2. The marriage registration certificate (the original);

3. The ID card or passport of the Husband and Wife (the certified copy);

4. The Birth Registration Certificate of the common child(ren) (the certified copy);

5. The certificate of ownership of properties and assets (the certified copy);

II. What are the procedures of mutual divorce in Viet Nam?

Step 1: Submit the dossier to the provincial – level Court where the husband or wife is living or working by post or in person in the Court;

Step 2: Pay the Court’s fee in advance. Within three working days from the day in which the dossier is received, a Judge considers whether the dossier satisfies all conditions or not. If the dossier is accepted, the notification of paying the Court’s fee in advance is issued and the Husband or Wife has to pay the Court’s fee in advance within seven days or in the period in the notification.

Step 3: Procedure the Mediation and recognition of voluntary divorces and agreements on child custody and property division upon divorces (According to the Article 397 of CCP), specifically:

1. Within the time for preparation for recognition of petitions, before conducting mediations to unify husbands and wives, when it is deemed necessary, Judges may ask for opinions of family affair authorities and/or children affair authorities about conditions of families of such husbands and wives, reasons for the rising of contradictions and expectation of husbands, wives and children related to the cases.

2. Judges must conduct mediations to unify husbands and wives; explain about rights and obligations between wife and husband, parents and children and between members of family and rights and obligations in providing alimonies and other matters related to marriage and family.

3. If after the mediations, the wives and the husbands decide to reunite, Judges shall issue decisions to terminate the resolution of their petitions.

4. If the mediations are not successful, the Judges shall make decisions to recognize the voluntary divorces and agreements between involved parties as provided for in Article 212 of CCP in the following conditions are fully satisfied:

a) The two sides really volunteer to divorce;

b) The two sides have reached agreements on whether or not to divide the common properties, on the care, rearing and education of their children;

c) Such agreements ensure the legitimate interests of the wives and their children.

5. If the mediations for reunification are not successful and involved parties cannot reach agreements about the division of properties and the care, rearing and education of children, then the Courts shall terminate the settlement of civil matters pertaining to recognition of voluntary divorces and agreements on child custody and property division and accept the cases for resolution. The Courts are not required to make notifications of the acceptance of the cases or to assign other Judges to take charge of the cases. The settlement of the cases shall be conducted according to common procedures prescribed in this Code.

III. The rights and obligations of Father and Mother after divorce if there are common child(ren) are stipulated in the Article 81, 82, 83 and 84 of Law on Marriage and Family:

Article 81. Looking after, care for, raising and education of children after divorce

1. After a divorce, parents still have rights and obligations to look after, care for, raise and educate minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves in accordance with  Law on Marriage and Family, the Civil Code and other relevant laws.

2. Husband and wife shall reach agreement on the person who directly raises their children and on his and her obligations and rights toward their children after divorce. If they fail to reach agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. If a child is full 7 years or older, his/ her desire shall be considered.

3. A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.

Article 82. Obligations and rights of the parent who does not directly raise children after divorce

1. The parent who does not directly raise a child shall respect the child’s right to live with the person who directly raises him/her.

2. The parent who does not directly raise a child shall support this child.

3. After divorce, the person who does not directly raise a child has the right and obligation to visit and care for this child without being obstructed by any person.

The parent who directly raises a child has the right to request a court to restrict the right of the other parent who does not directly raise this child if the latter takes advantage of his/her visit to and care for the child to obstruct or adversely affect the looking after, care for, raising and education of this child.

Article 83. Obligations and rights of the parent directly raising children toward the person not directly raise children after divorce

1. The parent directly raising a child has the right to request the person not directly raising this child to fulfill the obligations prescribed in Article 82 of Law on Marriage and Family and request this person and family members to respect his/her right to raise the child.

2. The parent directly raising a child and family members may not obstruct the person not directly raising the child from visiting, caring for, raising and educating this child.

Article 84. Change of the person directly raising children after divorce

1. At the request of a parent or a person or an organization prescribed in Clause 5 of Law on Marriage and Family, a court may decide to change the person directly raising a child.

2. Change of the person directly raising a child shall be settled when there is one of the following grounds:

a/ The parents agrees on change of the person directly raising a child in the interests of this child;

b/ The person directly raising the child no longer has sufficient conditions to directly look after, care for, raise and educate the child.

3. Upon change of the person directly raising a child aged full 7 or older, this child’s desire shall be taken into account.

4. When seeing that both parents fail to have sufficient conditions to directly raise a child, a court shall decide to assign this child to a guardian in accordance with the Civil Code.

5. When there is the ground prescribed at Point b, Clause 2 of Law on Marriage and Family, in the interests of a child, the following persons, agencies or organizations have the right to request change of the person directly raising this child:

a/ Next of kin;

b/ The state management agency in charge of families;

c/ The state management agency in charge of children;

d/ The women’s union.

IV. In summary:

Divorce is never easy for both parties, but if the marriage is broken, if the common life no longer possible and if the marriage purposes unachievable, divorce then may be necessary. The process for mutual divorce does not take as much time compared to divorce by one party. Therefore, the husband and wife should discuss with each other to terminate the marriage relationship smoothly and easily.

 

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