Resolution No. 01/2024/NQ-HDTP dated May 16, 2024 On Guidelines For Application of Certain Legal Regulations on Resolving Marriage and Family Cases

RESOLUTION

ON GUIDELINES FOR APPLICATION OF CERTAIN LEGAL REGULATIONS ON RESOLVING MARRIAGE AND FAMILY CASES

THE COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT

Pursuant to the Law on Organization of the People's Court dated November 24, 2014;

Pursuant to the Law on Marriage and Family dated June 19, 2014;

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the Civil Procedure Code dated November 25, 2015;

Pursuant to Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, exemption, reduction, management and use thereof;

To ensure the consistent and accurate application of certain legal regulations in resolving marriage and family cases;

Upon receiving opinions from the Director of the Supreme People's Procuracy and the Minister of Justice,

HEREBY RESOLVES:

Article 1. Scope

This Resolution guides the application of certain legal regulations on resolving marriage and family cases.

Article 2. The right to petition for divorce specified in Clause 3, Article 51 of the Law on Marriage and Family

1. “pregnant” as defined in Clause 3 of Article 51 of the Law on Marriage and Family refers to the period during which the wife carries a fetus and is determined by a competent medical facility, until the time of delivery or termination of pregnancy.

2. “has given birth” as defined in Clause 3 of Article 51 of the Law on Marriage and Family refers to any of the following circumstances:

a) The wife has given birth but has not raised the child for a period from the time of birth to the time the child is under 12 months old;

b) The wife has given birth but the child dies within 12 months of birth;

c) The wife is pregnant for 22 weeks or more and must terminate the pregnancy.

3. The husband may not petition the court for divorce within twelve (12) months following the wife's childbirth as guided at Points a and b, Clause 2 of this Article or the date of termination of pregnancy as guided at Point c, Clause 2 of this Article.

4. In case the wife is pregnant or has given birth, the husband shall not have the right to petition for divorce, regardless of whom the wife is pregnant or has given birth to.

5. In case the wife is raising a child under 12 months of age, the husband shall not have the right to petition for divorce, regardless of whether the child is a biological child or an adopted child.

6. In case of surrogacy for humanitarian purposes, the husband's right to petition for divorce is determined as follows:

a) The surrogate's husband does not have the right to petition for divorce when his wife is pregnant, has given birth, or is raising a child under 12 months old;

b) The intended mother’s husband does not have the right to petition for divorce when his wife is raising a child under 12 months old or when the surrogate mother is pregnant, has given birth, or is raising a child under 12 months old.

Article 3. Divorce by mutual consent stipulated in Article 55 of the Law on Marriage and Family

1. "both spouses request a divorce" specified in Article 55 of the Law on Marriage and Family is the case where both spouses sign a joint application for recognition of mutual consent divorce, child custody agreement, and property division upon divorce; or one spouse files a divorce petition, and the other spouse agrees to the divorce, child custody agreement, and property division upon divorce.

2. Any agreements between spouses regarding property division and child care, upbringing, and education must comply with all applicable laws and social ethics.

3. The spousal agreement on property division includes cases where the spouses do not request the Court to resolve the property division.

4. “Child care, upbringing, and education” as specified in Article 55 of the Law on Marriage and Family refers to the care, upbringing, and education of minor children or adult children who are legally incapacitated, unable to work and do not have the property to support themselves.

Article 4. Divorce at the request of one spouse specified in Clause 1, Article 56 of the Law on Marriage and Family

1. "A spouse commits domestic violence acts" refers to a spouse engaging in any act as defined in Clause 1 of Article 3 of the Law on Prevention and Control of Domestic Violence.

2. "Seriously infringes upon spousal rights and obligations’ refers to a violation against the Law on Marriage and Family regarding the rights and obligations of spouses that seriously infringes upon the rights and legitimate interests of the other spouse.

For example: A spouse dissipates the family's property.

3. "seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable" refers to one of the following cases:

a) Absence of marital affection, for example: Spouses do not love, respect, care for, or support each other; spouses live separately and neglect each other;

b) Spouses have an adulterous relationship;

c) Spouses insult each other, harm each other's honor, dignity, reputation, mental loss or cause injury or damage to each other's health;

d) Inequality of rights and obligations between spouses; failure to respect each other's freedom of belief and religion; failure to assist and support personal development.

Article 5. Restrictions on the division of marital property in the event of the death of one spouse or declaration of death by the Court as stipulated in Clause 3 of Article 66 of the Law on Marriage and Family

The division of the estate seriously affecting the life of the surviving spouse and the family outlined in Clause 3, Article 66 of the Law on Marriage and Family and Article 661 of the Civil Code is the case that the deceased leaves behind an estate, but if this property is divided among the heirs, the surviving spouse and family will face significant hardships in their daily lives, such as: lack of housing, loss of the sole means of production, etc.

Example 1: Prior to the marriage, Mr. A acquired a 35 square meter single-story house. Subsequently, Mr. A married Ms. B and did not include the house in the couple's joint property. After the birth of a child, Mr. A passed away without leaving a will. Mr. A's parents requested the division of the inherited property, which is Mr. A's house. Ms. B and the child have no other place to live and do not yet have the means to establish another residence. The house cannot be divided physically. In this case, the division of the inherited property, which is the house, would have a significant impact on the livelihood of Ms. B and the child.

Example 2: Mr. C and Ms. D married and purchased a 35 square meter house. After the birth of a child, Mr. C passed away without leaving a will. Mr. C's parents requested the division of the inherited property left by Mr. C, which is Mr. C's share of the house. Ms. D and the child have no other place to live. Dividing the house physically would not ensure the minimum living conditions for Ms. D and the child. Additionally, Ms. D lacks the financial means to buy out the inheritance share of Mr. C's parents. In this case, the division of the inherited property, which is Mr. C's share of the 35 square meter house, would have a significant impact on the livelihood of Ms. D and the child.

Article 6. Settlement of child custody upon divorce specified in Article 81 of the Law on Marriage and Family

1. In considering "the children’s benefits in all aspects" prescribed in Clause 2, Article 81 of the Law on Marriage and Family, the following criteria must be objectively and comprehensively evaluated:

a) The conditions and capabilities of the parents in caring for, raising, and educating the child, including the ability to protect the child from abuse and exploitation;

b) The child's right to live with the custodial parent, and to maintain a relationship with the non-custodial parent;

c) The child's emotional bond and closeness to each parent;

d) Parents' concern for their children;

dd) Ensuring stability and minimizing disruptions to the child's living environment and education;

e) The child's desire to live with siblings (if any) to maintain emotional and psychological stability;

g) The child's preference to live with either parent.

2. Collecting opinions from minor children aged 7 years or older prescribed in Clause 2, Article 81 of the Law on Marriage and Family and Clause 3, Article 208 of the Civil Procedure Code must meet the following requirements:

a) Ensure a friendly and appropriate environment that aligns with the child's psychological development, age, and maturity level, allowing the child to express their opinion freely and fully;

b) Do not seek the child's opinion in the presence of the parents to avoid causing psychological pressure on the child;

c) Do not coerce, cause pressure or stress on the child.

3. "The mother cannot afford to directly look after, care for, raise and educate the child" as specified in Clause 3, Article 81 of the Law on Marriage and Family refers to situations where the mother falls under one of the following circumstances:

a) The mother suffers from a serious illness or other severe illness that renders her unable to care for herself or directly care for, raise, and educate the child;

For example: In a case where the mother has suffered a stroke and is paralyzed on one side, rendering her unable to walk, the Court will not entrust a child under 36 months of age to the mother's direct care, raising, and education.

b) The mother has a monthly income lower than half the minimum regional wage in the place where the mother resides and does not have any other assets to care for, raise, and educate the child;

c) The mother does not have the minimum time required to directly care for, raise, and educate the child.

4. In cases where the father's conditions for caring for, raising, and educating the child are not better than the mother's as specified in Clause 3 of this Article, the Court shall decide to entrust the child to the mother's direct custody.

Article 7. Child support obligations specified in Clause 2, Article 82 of the Law on Marriage and Family

1. If the custodial parent does not request child support from the non-custodial parent, the Court shall inform them that such a request is essential to safeguard the child's legitimate rights and interests. If the court determines that the custodial parent has the financial capacity and resources to provide for the child's needs, and their decision to forego child support is voluntary, the Court shall not compel the non-custodial parent to pay child support.

2. Child support shall cover all expenses for the child's upbringing and education, as agreed upon by both parents. If the parents cannot agree, the Court will determine the child support amount based on the paying parent's income, ability to pay child support, and the child's essential needs. The court-determined child support amount cannot be less than half of the minimum regional wage in the paying parent's place of residence, per month, for each child.

3. If the parties cannot agree on the method of child support payment, the Court shall determine the method as either monthly payments or another method that is appropriate for the child's needs and interests, as well as the financial circumstances of the parent obligated to pay child support.

4. The obligation of parents to provide child support for their minor children or adult children who are legally incapacitated, unable to work and do not have the property to support themselves arises from the time the parents no longer live together with the children or live together with the children but violate their obligation to support the child, except where the parties have agreed otherwise.

Article 8. Restrictions on parents’ rights toward their minor children specified in Article 85 of the Law on Marriage and Family

1. “convicted of one of the crimes of intentionally infringing upon the life, health, dignity or honor of this child” means that a parent has been sentenced by a court with a legally effective sentence to a crime under Chapter XIV of the Criminal Code against a minor child with intent.

For example: A parent has been sentenced by a court with a legally effective sentence to “Deliberate infliction of bodily harm” under Article 134 of the Criminal Code against a minor child.

2. “Commits acts of seriously breaching the obligations to look after, care for, raise and educate the child” means the failure to fulfill or the improper and incomplete fulfillment of the obligation to look after, care for, raise and educate the child, causing serious harm to the child's legitimate rights and interests or impairing the child's overall development.

For example: A parent abandons a minor child to fend for themselves or has no financial capacities to support themselves, leading the child to commit theft.

3. “disperses property of the child” means buying, selling, gifting, destroying or other acts that damage the child's property without for the benefit of the child.

4. “leads a depraved life” means a vile, evil, corrupt lifestyle that is contrary to the good customs and traditions of the nation.

For example: A parent engages in prostitution.

5. “incites or forces the child to act against law or social ethics” means the act of inciting, seducing, promoting, or forcing the child by words, gestures, or any means, leading the child to commit illegal and immoral acts.

For example: instigation, coercion leading to the child dropping out of school, theft, fraud, illegal transportation of drugs.

6. The Court may, on its own initiative or at the request of an individual, agency, or organization, issue a decision to restrict the rights of parents in relation to a minor child, in specific:

a) Prohibit a parent from caring for, raising, and educating their minor child if the parent has engaged in any acts outlined in Clauses 1, 2, 4 and 5 of this Article;

b) Prohibit a parent from managing their minor child's property if the parent has engaged in any acts outlined in Clause 3 of this Article;

c) Prohibit a parent from legally representing their minor child if the parent has engaged in any acts outlined in Clauses 1, 2, 3, 4 and 5 of this Article.

7. The Court may shorten the period of restriction of parental rights in relation to a minor child if the parent has completed at least half of the restriction period as determined by the Court and during the restriction period, the parent has not engaged in any of the acts specified in Clauses 1, 2, 3, 4, and 5 of this Article.

Article 9. Determination of jurisdiction for resolving marriage and family cases in some cases

1. A marriage and family case involving real estate dispute in which the defendant and plaintiff's place of residence or work specified in Points a and b, Clause 1, Article 39 of the Civil Procedure Code differs from the location of the disputed real estate, the jurisdiction of the Court shall be determined in accordance with points a and b of Clause 1 of Article 39 of the Civil Procedure Code.

2. In case where overseas Vietnamese parents file a lawsuit regarding the modification of child custody after divorce, and the shared child is currently residing in Vietnam, the jurisdiction for resolving the case shall belong to the Vietnamese Court in accordance with Clause d of Point 1 of Article 469 of the Civil Procedure Code.

Article 10. Resolution of divorce cases involving defendants who are overseas Vietnamese with unknown addresses

In divorce cases where a Vietnamese citizen residing in Vietnam seeks a divorce from an overseas Vietnamese and can only provide the defendant's last known address in Vietnam but cannot provide the defendant's address abroad, the Court shall proceed as follows:

1. If there is a basis to determine that the defendant has contacted with their relatives in Vietnam, but these relatives do not provide the defendant's address to the Court or fail to comply with the Court's request to inform the defendant, such actions shall be considered intentional concealment of the defendant's address.

If the Court has requested the defendant's relatives to provide the defendant's address twice, and they still fail to comply or inform the defendant, the Court shall proceed with the case and conduct the trial in the defendant's absence in accordance with the general procedure.

2. After the trial, the Court shall send a copy of the judgment and decision to the defendant's relatives for them to forward to the defendant. The Court shall also publicly post a copy of the judgment and decision at the headquarters of the People's Committee of the commune where the defendant last resided and where the defendant's relatives reside, so that the parties may exercise their right to appeal in accordance with the law of civil procedure.

Article 11. Court fees in resolving marriage and family cases

1. The litigants must bear court fees in disputes involving the determination of paternity or maternity in accordance with Article 26 of "Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, exemption, reduction, management and use thereof, except for disputes involving the determination of paternity or maternity for minor children or adult children who are legally incapacitated persons.

2. In a divorce case where the parties agree to divorce according to the provisions of the law on marriage and family, it is necessary to distinguish as follows:

a) If the parties agree to divorce before the first instance hearing, they shall bear 50% of the prescribed court fees (each party shall bear 25% of the prescribed court fee);

b) If the parties agree to divorce at the first instance hearing, they shall bear 100% of the prescribed court fees (each party shall bear 50% of the prescribed court fee).

3. In cases where the parties voluntarily agree to divorce before the first instance hearing but fail to reach an agreement on child custody and property division, and the Court conducts a trial and issues a first instance judgment, the parties shall bear 50% of the prescribed court fees for the divorce request (each party shall bear 25% of the prescribed court fee); regarding property relations, the court fee each party shall bear shall correspond to the value of the property portion they are entitled to as per the law on court fees.

Article 12. Entry into force

1. This Resolution is passed by the Council of Judges of the Supreme People's Court on April 24, 2024 and comes into force as of July 1, 2024.

2. Difficulties that arise during the implementation of this Circular should be reported to the Supreme People’s Court for consideration./.

 

ON BEHALF OF THE COUNCIL OF JUDGES CHIEF JUSTICE Nguyen Hoa Binh