Divorce in Vietnam: Trends, Legal Framework, and Resolution of Complex Disputes

1. Procedure and Legal Basis for Divorce Resolution When One Party is Absent

Vietnamese law guarantees the right of both spouses to request the Court to resolve a divorce, as stipulated in Article 51 and Article 56 of the Law on Marriage and Family 2014. However, in practice, there are many cases where one party intentionally absents themselves or fails to cooperate during the legal proceedings, aiming to delay or complicate the termination of the marriage.

In situations where one party is not present at their place of residence, their address is unknown, or they are intentionally evading, the other party has the right to file for a unilateral divorce, accompanied by documents and evidence proving that the marital situation has seriously broken down, cohabitation cannot be maintained, and the purpose of the marriage has not been achieved. In such cases, the Court may proceed with the public posting of the case acceptance notice as regulated by the Civil Procedure Code 2015. If, after multiple valid summonses, the defendant still intentionally fails to appear, the Court has the right to conduct a trial in absentia according to Clause 2, Article 227 of the Civil Procedure Code 2015.

If there are grounds to believe that public posting does not ensure the served party receives the information, the litigant has the right to request the Court to make an announcement through mass media, as stipulated in Article 180 of the Civil Procedure Code 2015. For cases where the defendant has emigrated abroad but their specific address cannot be determined, the Court will request the plaintiff to carry out verification procedures through the Ministry of Foreign Affairs or Vietnamese consular agencies abroad. If the verification process yields no results, the Court may still proceed with a trial in absentia based on clear evidence that has been collected.

2. Child Custody Rights and Post-Divorce Support Obligations: Core Regulations

One of the important and frequently disputed aspects in divorce cases is determining child custody rights and support obligations after the parents separate.

According to Articles 81 and 82 of the Law on Marriage and Family 2014, after a divorce, both parents retain their rights and obligations in caring for, nurturing, and educating their children. If the two parties cannot reach a mutual agreement, the Court will be the body to make the final decision, assigning the child to one party for direct upbringing. This decision is based on a comprehensive assessment of the material and spiritual conditions, as well as the time each party can dedicate to childcare, to ensure the best interests of the child.

The law particularly notes the child's wishes: if the child is 07 years old or older, the Court must consider the child's opinion (Clause 2, Article 81 of the Law on Marriage and Family 2014). Other factors such as stable income, housing conditions, cultural level, morality, and parental behavior are also carefully considered.

The child support obligation after divorce is detailed in Articles 107 and 110 of the Law on Marriage and Family 2014. Accordingly, the non-custodial parent is responsible for contributing financially to support the child's upbringing. The support amount is determined based on the paying parent's economic capacity and the child's actual and essential needs. It should be emphasized that the support obligation is a mandatory legal responsibility and does not depend on the voluntary will of the father or mother. In cases of intentional non-compliance, the judgment enforcement agency can apply coercive measures to ensure the child's rights.

3. Principles of Marital Property Division in Divorce

The division of marital property upon divorce is carried out according to the basic principles stipulated in Article 59 of the Law on Marriage and Family 2014. The guiding principle is "division in half, but taking into account factors" such as: the specific circumstances of the family and each party; the contribution of each spouse to the creation, maintenance, and development of the common property (domestic labor is considered income-generating labor); the fault of each party in violating spousal rights and obligations leading to the divorce; and the protection of the legitimate interests of each party so that they have the conditions to continue working and generating income, especially protecting the interests of the children.

Property is considered common property if it was acquired during the marriage period, unless one party can prove it is their separate property (e.g., received as a separate inheritance, or separate gift). The division of property can be done in kind; if it cannot be divided in kind or if division in kind does not ensure a reasonable proportion, the property will be valued and divided in cash accordingly. The separate property of a spouse, if there is no legal agreement to merge it into the common property, will not be subject to division upon divorce and will remain with the owner.

Besides assets, common financial obligations (common debts) of the spouses will also be considered by the Court, and responsibility for repaying the debt will be assigned to each party based on their contribution ratio, the purpose of the loan, and other relevant factors.

4. Adjudication Practice: Some Complex and Prolonged Divorce Cases

The practice of resolving divorce cases in Vietnam shows many particularly complex cases, requiring lengthy legal proceedings and attracting public attention. For example:

• The divorce case of a real estate entrepreneur couple in Ho Chi Minh City (2017–2022): This case lasted for 5 years, mainly due to disputes over common assets worth hundreds of billions of VND, including many companies, real estate, shares, and complex loans. The process of verifying the origin of assets, valuation, and revaluation of assets occurred multiple times, prolonging the resolution time.
• A unilateral divorce case with foreign elements (Hanoi, 2019): In this case, the husband had settled in Canada and did not cooperate, nor did he respond to legal notices from the Court. This forced the Court to carry out many complex verification procedures through diplomatic agencies. The entire process took more than 2 years before the Court could issue a judgment in absentia.
• A divorce and fierce child custody dispute case in Binh Duong (2018–2022): This case lasted 4 years because the husband tried to gain custody of the child despite not ensuring the best actual conditions for the child. The dispute was not limited to the couple but also extended to both families, causing negative and serious impacts on the child's psychology. The Court had to organize many mediation sessions, request child psychological assessments, and consult experts' opinions before making the final decision on child custody.

5. Conclusion and Directions for Improvement

In modern society, divorce is no longer considered a taboo but has become a personal choice when marital life can no longer maintain happiness and its original good purposes. However, it is necessary to clearly recognize that resolving a divorce is not just a matter of emotions but also a complex legal process, requiring strict adherence to legal regulations. Factors such as one party intentionally being absent, fierce disputes over child custody, division of high-value assets, or deeply rooted family conflicts all have the potential to prolong a divorce case for many years, causing fatigue and expense for the parties involved.

This situation poses an urgent need to improve and perfect the civil procedure mechanism related to marriage and family cases. It is necessary to enhance the effectiveness of mediation work, develop professional pre-divorce counseling services, and at the same time promote the application of information technology in managing records and exchanging information, to ensure the legitimate rights and interests of the parties, especially the rights of children – the most vulnerable subjects in parental separations.

For every citizen, equipping themselves with basic legal knowledge about rights, obligations, and procedures related to divorce is extremely necessary. This not only helps them effectively protect their own rights but also supports the process of regaining independence and balance in life after marital breakdowns.

 

The information contained in this article is general and intended only to provide information on legal regulations. DB Legal will not be responsible for any use or application of this information for any business purpose. For in-depth advice on specific cases, please contact us.

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