Divorce and Division of Assets

Divorce Involving Foreign Elements – Procedures and Formalities

Author
Stephen Le

Along with the trend of international integration, marriage involving foreign elements has become more and more popular. And when the purpose of marriage is not achieved and two parties no longer find similarities, divorce involving foreign elements has become common, too. Where to file a petition for divorce? And what are the formalities? Which agency is responsible for handling this divorce cases?… We will provide you with instructions in this case!

What is divorce involving foreign elements?

Article 127 of Family and Marriage Law 2014 states regarding marriage involving foreign elements as follows:

  • Divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency in accordance with this Law.
  • In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.
  • The settlement of a divorced couple’s immovables in a foreign country must comply with the law of the country where such immovables are located.

Accordingly, a divorce involving a foreign elements is the termination of husband and wife relationship under a legally effective judgment or decision of a court, in which one of the spouses is a foreigner, or both husband and wife are foreigners permanently residing in Vietnam. In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.

Where to file a petition for divorce involving foreign elements?

In case of a divorce involving foreign elements, it is necessary to file a petition with a competent authority for settlement. Therefore, upon divorce, husband and wife must file an petition to the People’s Court of the province where the couple resides and works (divorce by mutual consent) or the People’s Court of the province where the defendant resides and works (unilateral divorce).

For example: Mr. A is a Vietnamese citizen, and Ms. B is a Japanese citizen, and both of them reside and work in Hanoi. Thus, the competent authority for settlement of this case is the People’s Court of Hanoi. Therefore, they must submit petition for divorce and attached documents to the People’s Court of Hanoi.

Which authority has the jurisdiction to settle a divorce involving foreign elements

  • Determine jurisdiction in general

According to Articles 28 and 29 of Civil Procedure Code 2015, Court is the competent authority to settle divorce formalities in general and marriage involving foreign elements in particular.

  • Determine jurisdiction by level

According to Clause 1, Article 37 of Civil Procedure Code 2015, People’s Courts of provinces shall have the jurisdiction to settle divorce involving foreign elements.

  • Determine territorial jurisdiction

Pursuant to Article 39 of Civil Procedure Code regarding territorial jurisdiction of courts over civil cases, the Courts of the localities where the defendants reside or work unilateral divorce); the Courts of the localities where the husband and wife or either of them reside or work (divorce by mutual consent).

Therefore, considering above provisions, the jurisdiction to settle divorce cases involving foreign elements belongs to People’s Court of the provinces where the defendants reside or work unilateral divorce) or the People’s Courts of the provinces where the husband and wife or either of them reside or work (divorce by mutual consent).

Under special cases set out in Clause 4, Article 35 of Civil Procedure Code 2015, in case of marriage between Vietnamese citizens living in frontier areas and citizens of neighboring countries living near Vietnam, the jurisdiction belongs to the People’s Courts of the districts.

Procedures and documents for divorce involving foreign elements

1. Procedures:

The procedures for divorce involving foreign elements are carried out with specific steps as follows:

Step 1: Submit the documents prepared according to above instructions on filing for divorce involving foreign elements at the competent Court.

Step 2: If filing documents are complete and valid, the Court will send a notice of advance payment to the applicant. Handling period: 7-15 days.

Step 3: The applicant makes advance payment of court’s fee for civil case at the competent civil judgment enforcement branch. Then, he or she submits the receipt thereof to the Court.

Step 4: The Court commences a mediation session at the court according to the provisions of first-instance procedures.

Handling period for divorce involving foreign elements: 4-6 months from the date of the Court’s receipt of case as prescribed by Civil Procedure Code 2015.

2. Documents:

Including:

  • Petition for divorce / petition for acknowledgment of divorce by mutual consent (in form issued by the Court).
  • Original copy of the certificate of marriage (if available), true copy issued by competent authority is accepted (if the original copy of the certificate of marriage is lost).
  • ID card / Citizen’s ID / Passport and Household Register (certified copy).
  • Copy of birth certificate for any child (if any).
  • Certified copy of papers and documents related to the property ownership title under dispute (in case of any dispute over property).
  • Supporting documents as evidence that one party is overseas (if any).

Notes: In case the two parties register their marriage under foreign law and want to carry out divorce procedures in Vietnam, it is necessary to apply for legalization of the certificate of marriage by consulate office and carry out the procedures for registration at the Department of Justice, then proceed to file a petition for divorce at the court.

How much is court’s fee for divorce involving foreign elements?

Court’s fee for a divorce involving foreign elements is determined in accordance with Resolution No. 326/2016/UBTVQH14, including:

  • Court’s fee for trial case of divorce by mutual consent without any dispute over property is 300,000 VND.
  • Court’s fee for trial case of divorce involving foreign elements and unilateral divorce is 300,000 VND. Besides, in case of unilateral divorce involving foreign elements and dispute over property of which value is 6,000,000 VND or higher, it is required to pay fee for request for division of property at a percentage of value of property under dispute.
  • Fee for entrusting judicial authority for verification at a foreign authority is 200,000 VND.

We have provided you with instructions on matters related to divorce involving foreign elements.  Please contact us for more detailed instructions: letran@familylawyers.vn .

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