Can You Divorce While Pregnant?

Can You Divorce While Pregnant?

In Vietnam, the answer depends on which spouse wants the divorce. A pregnant wife can file for divorce at any time. A husband cannot ask for a divorce while his wife is pregnant, after she has given birth, or while she is raising a child under 12 months old. That restriction applies even if the husband is not the child’s father.

The rule is set out in Article 51 of the Law on Marriage and Family, and the Supreme People’s Court explained exactly how it works in Resolution 01/2024, which took effect on 1 July 2024. This guide covers who can file, how long the husband’s restriction lasts, when a divorce by mutual consent is possible, and what the law says about a baby born after the divorce.

A Pregnant Wife Can File for Divorce

Under Article 51, either spouse, or both together, may ask the court for a divorce. The restriction that applies during pregnancy is aimed only at the husband. A wife who wants to end the marriage while pregnant can therefore file in the ordinary way, and the court will deal with her case like any other divorce. Our guide on how to file a divorce petition sets out the steps.

Pregnancy does not change the grounds the court looks at, but it does shape the outcome in practice. When dividing property, the court is required to protect the lawful interests of the wife and of minor children. Any arrangement for the baby will also be decided with the child’s interests at the centre.

Why a Husband Cannot File While His Wife Is Pregnant

The position is different for a husband, because Article 51(3) states that he has no right to ask for a divorce while his wife is pregnant, has given birth, or is raising a child under 12 months old. The purpose is to protect the mother and the child at a time when both are especially vulnerable.

In practice, if a husband files during this period, the court will not hear the case and returns his petition. This does not take away his right to divorce, but it postpones it until the protected period ends, unless the divorce goes ahead on another basis described below.

How Long the Restriction Lasts

Resolution 01/2024 sets out exactly when the husband’s restriction applies. It covers the following periods:

• During the pregnancy, from the time a competent medical facility confirms the pregnancy until the birth or the end of the pregnancy.
• For 12 months after the birth, including where the child died before reaching 12 months, or where the wife gave birth but is not raising the child.
• For 12 months after a pregnancy ends at 22 weeks or later.
• While the wife is raising a child under 12 months old, whether that child is her biological child or an adopted child.

The resolution also explains how the restriction applies in humanitarian surrogacy, both to the husband of the surrogate mother and to the husband of the intended mother. Those cases depend closely on the facts and are best assessed individually.

Does the Rule Apply if the Child Is Not the Husband’s?

Resolution 01/2024 makes clear that the restriction applies regardless of who the father is. This point drew wide public attention when the resolution was published, although the rule itself is not new. Vietnamese marriage law has restricted a husband’s right to divorce during pregnancy and the first year after birth for many years, and the 2024 resolution only made the details explicit.

Whether the child is the husband’s is a separate legal question. It is decided under the rules on parentage, and a husband who believes he is not the father can raise that question through the procedures to establish paternity. Raising that question does not lift the restriction, so the divorce itself still has to wait until the protected period has ended.

Mutual Consent Divorce During Pregnancy

Waiting is not the only way forward when both spouses want the marriage to end. The restriction limits the husband’s right to ask for a divorce on his own, and it does not stop a wife who wants the divorce herself. Where the wife agrees to end the marriage and the couple apply together for a divorce by mutual consent, courts generally accept the application, because the request then comes from her as well.

A mutual consent divorce has its own conditions under Article 55. Both spouses must agree voluntarily, and they must agree on property and on the children, in a way that protects the wife and the child. If those conditions are not met, the court decides the matter instead. The differences between the two routes are explained in our guide to contested and uncontested divorce.

What Happens to a Baby Born After the Divorce

Whichever route the divorce takes, it does not change who the child’s parents are. Under Article 88, a child born within 300 days after the marriage ends is treated as having been conceived during the marriage, and is therefore the couple’s child in law. A parent who disputes this has to prove it, and the question is decided by the court.

Because the child is legally the couple’s, both parents have obligations toward the baby once it is born. For a child under 36 months, the mother is generally given direct custody, unless she is unable to care for the child or the parents agree otherwise in the child’s interests. The parent who does not live with the child must contribute to the child’s support, and our guide on how child support is calculated explains how the amount is set. These arrangements can be settled by agreement between the parents or, where they cannot agree, by the court.

Options for a Husband While He Waits

For a husband who wants a divorce when his wife does not, the restriction means waiting, but it does not leave him without options. The couple can live apart, and the restriction does not prevent either spouse from seeking protection if there is violence in the home. The couple can also agree to divide common property during the marriage, or either spouse can ask the court to do so, which can separate their finances before any divorce.

Once the protected period ends, the husband can file in the ordinary way. Preparing in the meantime, by gathering financial records and thinking through arrangements for the child, usually makes the eventual case shorter and less contentious.

Getting Advice on Divorce During Pregnancy

When a marriage breaks down during pregnancy or in the first months of a baby’s life, the legal questions arrive at a time when there is very little energy to spare for them. It can be hard to know which decisions need to be made now and which can safely wait, and harder still to think clearly about property and arrangements for a child who has not yet been born.

Our divorce lawyers at Family Lawyers Vietnam work with wives and husbands in this situation with care and discretion. We can explain where you stand, help you protect yourself and your child, and handle the legal steps at a pace that suits your circumstances, whether that means filing now, responding to a divorce, or agreeing custody and support for the baby. We act for Vietnamese and foreign clients alike, and every conversation with us is confidential. Reach us at [email protected].