The Latest Divorce Procedures in Vietnam: What Documents are Required? Where to File?

Divorce is the last resort and an undesirable outcome in a marital relationship. However, divorce remains a very common reality today. To reach the decision to divorce, there are many legal issues related to the divorce procedure that couples need to understand clearly. Let’s explore the details with LawFirm.Vn in this article!

1. Current Legal Regulations on Divorce

1.1. Who has the right to request a divorce?

Divorce is the termination of the spousal relationship pursuant to a legally effective judgment or decision of the Court. According to the provisions of Article 51 of the Law on Marriage and Family of Vietnam 2014, the persons who have the right to request a settlement of divorce include:

– A husband, a wife, or both have the right to request the Court to settle the divorce.

– A parent or other next of kin has the right to request the Court to settle a divorce when one spouse, due to a mental illness or another disease, is unable to perceive or control their own actions, and is concurrently a victim of domestic violence caused by their spouse, which seriously affects their life, health, or mental state.

Note: A husband does not have the right to request a divorce when his wife is pregnant, has given birth, or is raising a child under 12 months of age. However, if the wife is pregnant, has given birth, or is raising a child under 12 months of age, she has the right to request the Court to grant a divorce.

Thus, the person entitled to request a divorce may be the husband, the wife, or a third party as specified above.

1.2. Conditions for Requesting a Divorce

Currently, there are two forms of divorce: unilateral divorce and consensual divorce. Therefore, each type has different conditions. Specifically:

1.2.1. Conditions for Unilateral Divorce

A husband or wife has the right to a unilateral divorce in one of the following cases:

– A spouse has committed acts of domestic violence;

– A spouse has seriously violated the rights and obligations of a husband or wife, causing the marriage to fall into a serious state of breakdown, and the common life cannot be prolonged;

– A spouse has been declared by the Court as missing;

– When one person suffers from a mental illness or other disease and is concurrently a victim of domestic violence caused by the other spouse.

1.2.2. Conditions for Consensual Divorce

A husband and wife have the right to request a settlement of divorce in one of the following cases: – Both parties genuinely and voluntarily consent to the divorce; – Both parties have reached an agreement on the division of property, child custody, support obligations, etc.

1.3. Documents to Prepare for Divorce

Fundamentally, the documents required for both unilateral and consensual divorce are the same. The necessary documents include:

• Certificate of Marriage Registration (original);
• Citizen Identity Card (Căn cước công dân) of the husband and wife (certified copy);
• Birth certificates of the children (if there are common children, certified copy);
• Certificate of Residence Information (certified copy);
• Documents proving ownership of common property (if any, certified copy).
• Other relevant documents.

Notes:

– If you do not have the original Certificate of Marriage Registration, you can contact the civil status registration agency where the marriage was registered to request a certified copy.

– If you do not have the Citizen Identity Card of your spouse, follow the Court’s guidance to submit an alternative identification document.

– The only difference between these two forms of divorce lies in the content of the divorce petition.

+ For a unilateral divorce, the Petition for Unilateral Divorce form issued with Resolution No. 01/2017/NQ-HĐTP shall be used.

+ For a consensual divorce, the Petition for Consensual Divorce form issued with Resolution No. 04/2018/NQ-HĐTP shall be used.

1.4. Where to File for Divorce?

According to Article 35 of the Civil Procedure Code of Vietnam 2015, the District-level People’s Court has the jurisdiction to settle divorce procedures at the first-instance level.

1.4.1. For Unilateral Divorce Cases

Article 39 of the Civil Procedure Code of Vietnam 2015 stipulates that the Court where the defendant resides or works has the jurisdiction to settle marriage and family disputes at the first-instance level. Therefore, in the case of a unilateral divorce, the competent court will be where the defendant resides or works.

Note: According to Clause 4, Article 85 of the Civil Procedure Code of Vietnam 2015, a husband or wife may not authorize another person to participate in the divorce proceedings on their behalf. They may only have someone submit the petition, pay court fees, etc. Instead, if unable to participate in the proceedings, the spouse may submit a request for a hearing in absentia to the Court.

1.4.2. For Consensual Divorce Cases

If a husband and wife agree to a consensual divorce, they can agree to file the procedure at the Court where either the husband or the wife resides.

Within 03 working days from the date of receiving the petition and accompanying documents and evidence, the Chief Justice of the Court will assign a Judge to handle the case.

1.5. How Long Does a Divorce Take?

Also under the Civil Procedure Code of Vietnam 2015, the processing time for a consensual divorce case is approximately 02 – 03 months from the date the Court accepts the petition.

In the case of a unilateral divorce, the processing time is longer, potentially from 04 – 06 months. In practice, if disputes arise over child custody or property, the processing time may be even longer.

1.6. Overview of the Divorce Settlement Process

1.6.1. For Unilateral Divorce

The unilateral divorce process is carried out in the following steps:

Step 1: Acceptance of the divorce petition (lawsuit petition). The husband or wife seeking a unilateral divorce must prepare a complete file of documents and evidence of domestic violence (if any) by the other party to submit to the competent Court (as mentioned above).

Step 2: Mediation. After receiving the unilateral divorce petition, the Court will consider whether to accept and docket the divorce case. If it finds grounds to consider the petition, it will request the petitioner to pay an advance on court fees and will proceed with mediation. If mediation is successful, the Court will issue a decision recognizing the successful mediation. If mediation fails, the Court will bring the case to trial.

Step 3: Opening the first-instance hearing. After the hearing, the Court will issue a judgment terminating the marital relationship between the husband and wife.

1.6.2. For Consensual Divorce

A consensual divorce is carried out in the following steps:

Step 1: Acceptance of the petition. The husband and wife prepare the aforementioned documents and submit the file to the competent Court.

Step 2: Preparation for reviewing the petition and opening a public meeting to resolve the request for recognition of consensual divorce. During this stage, the Court will review the petition, the grounds for terminating the marriage, and issue a notice to pay an advance on the civil matter fees. After the couple pays the fee advance, the Court will open a public meeting to resolve the request.

Step 3: Issuing the decision recognizing the consensual divorce. If mediation is unsuccessful during the public meeting, the Court will issue a decision recognizing the divorce. Conversely, if mediation is successful (i.e., the couple reconciles), the Court will terminate the settlement of the civil matter.

2. How is Property Divided After Divorce?

According to Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP, upon divorce, spouses have the right to agree among themselves on all matters, including the division of property. Therefore, common property can be divided by agreement upon divorce.

If they cannot reach an agreement and one or both parties request it, the Court will resolve the matter according to Clause 2, Article 59 of the Law on Marriage and Family of Vietnam 2014, based on the principle of equal division, but taking into account the following factors:

– The circumstances of the family and of the husband and wife;

– The contribution of each spouse to the creation, maintenance, and development of the common property;

– The protection of the legitimate interests of each party in production, business, and professional activities to enable them to continue generating income;

– The fault of each party in violating spousal rights and obligations.

3. The Issue of Child Custody and Support Upon Divorce

An issue no less important than the division of property is the matter of child custody and support after divorce.

Article 81 of the Law on Marriage and Family of Vietnam 2014 stipulates:

Article 81. Care, nurturing, and education of children after divorce

1. After divorce, parents still have the right and obligation to care for, nurture, and educate minor children, or adult children who have lost their civil act capacity or are unable to work and have no property to support themselves, in accordance with this Law, the Civil Code, and other relevant laws.

2. The husband and wife shall agree on the person who will directly raise the child, and the obligations and rights of each party towards the child after the divorce; if no agreement can be reached, the Court shall decide to assign the child to one party to directly raise, based on the best interests of the child in all aspects; if the child is seven years of age or older, the child’s aspirations must be considered.

3. A child under 36 months of age shall be assigned to the mother for direct care, unless the mother is not qualified to directly care for, nurture, and educate the child, or if the parents have another agreement that is in the child’s best interests.

In addition, the person not directly raising the child is obliged to provide support. The level of support shall be agreed upon based on the income and actual capacity of the person with the support obligation and the essential needs of the person receiving support.

4. Settlement of Common Debts Upon Divorce

As analyzed above, there are two forms of divorce: unilateral and consensual. Therefore, the issues to be resolved in these two forms also differ. However, in general, when couples wish to terminate their marital relationship, they often also want to resolve issues of common property, common children, and an integral part: common debts.

Accordingly, Clause 1, Article 60 of the Law on Marriage and Family of Vietnam 2014 provides: The property rights and obligations of the husband and wife towards a third party shall remain effective after the divorce, unless otherwise agreed by the spouses and the third party.

Therefore, common debts incurred by the couple during the marriage period, if not yet decided or recognized by the Court in a legally effective judgment or decision, remain valid even after the divorce. The only exception where the couple is not required to repay the debt after divorce is when the spouses and the third party (the lender) have a different agreement.

5. How Much are the Court Fees for Divorce?

According to Resolution 326/2016/NQ-UBTVQH14, the specific court fees for divorce are as follows:

– The court fee for a divorce case with no dispute over property is 300,000 VND;

– For cases involving a dispute over property, in addition to the 300,000 VND fee, the parties must also bear a court fee for the disputed property portion, which is determined based on the value of the disputed property.