Both husband and wife have the right to request divorce, except for the cases specified in the Law on Marriage and Family. So a husband cannot get a divorce even if his wife is pregnant with someone else, right? Let’s LawFirm.Vn find out through this article.
1. Cases entitled to request divorce settlement
Divorce is the termination of the husband and wife relationship according to the legally effective judgment or decision of the Court (according to Clause 14, Article 3 of the Law on Marriage and Family 2014)
Article 51 of the Law on Marriage and Family 2014 stipulates the right to request divorce settlement:
– Spouse or both have the right to ask the court to settle the divorce.
– Other parents/relatives have the right to request the court to settle the divorce when one spouse is unable to recognize and control his/her behavior due to mental illness or other diseases, and is also a victim of domestic violence caused by their husband or wife, seriously affecting their lives, their health and spirit.
However, the husband does not have the right to request a divorce in case the wife is pregnant, giving birth or raising a child under 12 months old.
The Law on Marriage and Family 2014 stipulates 02 forms of divorce:
Divorce by mutual consent (Article 55 of the Law on Marriage and Family 2014)
The court will settle the divorce request if both husband and wife make the same request, voluntarily and jointly agree on the division of property as well as the custody, nurturing, care, and education of the children… and ensure the legitimate interests of their wives and children;
Unilateral divorce (Article 56 of the Law on Marriage and Family 2014)
One spouse who loves the civet divorces, cannot be reconciled. The Court shall accept the divorce settlement in this case if there are grounds such as:
– When the spouse commits acts of domestic violence;
– When the spouse of the person declared missing by the Court requests a divorce;
– When there are grounds that the spouse has committed acts of domestic violence that seriously affect the life, or the health and spirit of the other person
– The husband and wife seriously violate the rights and obligations of the husband and wife, causing the marriage to fall into a serious condition, the common life cannot be prolonged, the purpose of marriage cannot be achieved…
2. The husband is not allowed to divorce even if his wife is pregnant with someone else, right?
Based on the above provisions, it can be seen that in principle, both spouses have the right to file for unilateral divorce without the consent of the other person.
However, in Clause 3, Article 51 of the Law on Civil Contracts, it is stipulated that while the wife is pregnant, giving birth or raising a child under 12 months old, the husband does not have the right to unilaterally divorce.
In addition, the draft Resolution guiding a number of legal provisions in the settlement of marriage and family cases of the Supreme People’s Court has provided specific guidance on the case where the husband does not have the right to request a divorce in case the wife is pregnant. giving birth to a child or raising a child under 12 months old according to Clause 3, Article 51 of the Law on Civil Contracts 2014.
Accordingly:
– “Childbirth” is a case where the wife has given birth to a child but the child dies in the period from the time of birth to the child under 12 months old or has given birth but does not raise the child during the period from the time of birth to the child under 12 months old.
– “Raising a child under 12 months old” is a case where the wife is raising a child under 12 months old, regardless of whether it is a natural child or an adopted child.
Thus, if the wife is pregnant, giving birth or raising a child under 12 months old, the husband does not have the right to request a divorce regardless of who the pregnant wife is with.
In addition, in the case of gestational surrogacy for humanitarian purposes, neither the husband of the gestational surrogacy nor the husband of the gestational surrogacy requester has the right to request a divorce when the wife is pregnant, giving birth or raising a child under 12 months old.
Thus, it can be seen that if your wife is pregnant, you will not have the right to request a divorce even if your wife is pregnant with someone else.
However, if your wife agrees (divorce by mutual consent) or your wife makes a unilateral divorce, you can get a divorce and do not need to wait a year after giving birth.
