Divorce is a matter of consideration where a marital relationship experiences conflicts that cannot be resolved. As such, divorce is the termination of a marital relationship according to enforceable judgment/decree of the Court. So how to get a divorce? How are the divorce procedures? How is community property divided? These are frequently asked questions when a husband or a wife wishes to get a divorce. The article will provide the necessary information and documents for divorce by current laws.
When can you get a divorce?
Clause 1, Article 51 of the 2014 Law on Marriage and Family prescribes that “A wife, a husband or both has/have the right to request a court to settle their divorce”. Therefore, the wife, husband, or both has/have the right to request a Court to settle their divorce.
A parent or another next of kin of a spouse has the right to request a court to settle a divorce upon satisfaction of the two conditions:
- Either spouse is unable to perceive and control his/her acts due to a mental disease or another disease and
- Is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health, or spirit.
Does a husband have the right to obtain a divorce if his wife is pregnant or has just given birth?
Clause 3, Article 51 of the 2014 Law on Marriage and Family prescribes that a husband has no right to request a divorce in the following cases:
- Wife is pregnant; or
- Wife has given birth; or
- Wife is raising a child under 12 months old.
So, in any of the above cases, a husband has no right to request a divorce. It should be noted that the above provision only applies to husbands. A wife may still request the Court to settle her divorce if she is pregnant, has given birth, or is raising a child under 12 months old.
What documents are required for a divorce according to the law? What documents should be filed for a divorce?
For divorce by mutual consent (divorce at the request of both spouses)
Under Article 55 of the Law on Marriage and Family 2015, divorce by mutual consent is that “When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two are willing to divorce and have agreed upon the property division, custody and education of their children based on ensuring the legitimate interests of the wife and children; If the spouses fail to reach an agreement or have reached an agreement which fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce accordingly.”
A divorce by mutual consent can be briefly understood as when both spouses voluntarily file a divorce petition and agree on issues like community property, children, community debt, and other related issues.
As such, spouses need to prepare the following documents in case of a mutual consent divorce:
- Filing a petition for a divorce by mutual consent;
- Original copy of Marriage Certificate;
- Certified copies of ID/Citizen ID cards of the spouses;
- Certified copy of the family register of the spouses;
- Certified copies of birth certificates of the children;
- Certified copies of certifies of community property. Certificate of Land Use Right, Ownership of House and other land-attached property,…)
Concerning a unilateral divorce petition
In principle, Court shall conduct conciliation by the law after accepting a divorce petition. Therefore, if a spouse requests a divorce but the conciliation at the Court is unsuccessful, the Court shall grant the divorce if the divorce is due to domestic violence or a serious breach of spousal rights and obligations, which seriously deteriorates their marriage and make their marital life impossible and the purpose of marriage unachievable.
- Petition for a unilateral divorce (issued under Resolution No. 01/2017/NQ-HDTP);
- Original copy of Marriage Certificate;
- Certified copies of ID/Citizen ID cards of the spouses;
- Certified copy of the family register of the spouses;
- Certified copies of birth certificates of the children;
- Certified copies of certifies of community property. Certificate of Land Use Right, Ownership of House and other land-attached property,…)
- Supporting documents, and evidence proving valid grounds for a unilateral divorce: Evidence shows that a spouse commits acts of domestic violence or serious breach of spousal rights and obligations, which seriously deteriorates their marriage and makes their marital life impossible and the purpose of marriage unachievable.
Where will I submit a divorce petition?
According to the applicable law, the district court has jurisdiction to settle a divorce, a divorce petition shall be filed at the provincial court if involving foreign elements. As such,
For a divorce by mutual consent
Spouses shall file a divorce petition at the Court of the localities where they reside if they mutually agree on the divorce.
For a unilateral divorce
Article 39 of the Civil Procedure Code 2015 prescribes that the Court of the localities where the defendant resides and works has the jurisdiction to settle disputes over marriage and family according to First-instance procedures.
Therefore, in the case of unilateral divorce, that the Court of the localities where the defendant resides and works has the jurisdiction to settle a unilateral divorce.
How many steps are there in the divorce process?
For a divorce by mutual consent:
Step 1: Preparing and submitting documents to a court of jurisdiction:
Spouses prepare documents for a divorce by mutual consent and submit them to a Court of jurisdiction.
Step 2: Accepting the case by the Court
The court considers and accepts the case after reviewing the documents provided by the spouses and other related documents of legal proceedings.
Step 3: Preparing to consider the petition and opening a session in public to resolve the request for recognition of a mutual consent divorce.
The court will consider a petition for mutual consent divorce and grounds for terminating a marital relationship and issue a notice on fee advance.
Step 4: Paying fee advances
Spouses shall pay a fee advance according to the Court’s notice of fee advance payment.
Step 5: Opening a session in public
The court shall open a session in public to resolve the request for recognition of a mutual consent divorce.
Step 6: The court shall issue a decision to recognize a mutual consent divorce.
The Court will issue a decision to recognize the divorce after its conciliation is unsuccessful. The Court will terminate the civil case if its conciliation is successful.
In some courts, the Court also requests a conciliation be carried out at the commune-level or ward-level People’s Committee before a divorce petition is filed.
For a unilateral divorce
Step 1: Preparing and submitting documents to a court of jurisdiction:
A spouse wishing to get a divorce shall fully prepare documents, papers, materials, and evidence proving acts of domestic violence or serious breach of spousal rights and obligations, which seriously deteriorates their marriage and make their marital life impossible and the purpose of marriage unachievable.
Step 2: Accepting the case by the Court
The Court shall consider conditions on accepting the case within five working days from receipt of a petition.
Step 3: Paying court fee advances
After the Court accepts the case, the plaintiff shall pay the first-instance civil court fee advance at the district’s Division of Judgment Enforcement and submit a receipt of the court fee advance to the Court;
Step 4: Conciliation
The Court will conduct conciliation after the case is accepted and the plaintiff has paid the court fee advance. The Court shall issue a decision to recognize the successful conciliation if the conciliation is successful. Otherwise, the Court will bring the case to trial if conciliation is unsuccessful.
Step 5: Opening the first-instance court session
Based on documents provided by the spouses and available in the case records, the Court will consider and issue a judgment to terminate the marital relationship between the spouses as well as related issues such as community property, and children…
How community property is divided if the spouses fail to reach an agreement?
The Court shall settle by way of giving half to either party but taking into account the following elements:
- Family circumstances of the spouses;
- Contribution of each spouse to the creation, maintenance, and development of community property.
- Protecting legitimate interests of either spouse in production, business, and occupation so that the spouses have conditions to continue working to earn income;
- Faults of each spouse in infringing upon spousal rights and obligations.
Concerning community property
Community property of husband and wife shall be divided in kind, if impossible to be divided in kind, the community property shall be divided based on its value. The party who receives the property in kind at a value larger than the portion he/she is entitled to receive shall pay the value difference to the other.
Concerning separate property of spouses
Separate property of a spouse shall be under his/her ownership, except for separate property that has been merged into community property according to the 2014 Law on Marriage and Family.
How is the property distribution if either spouse living with his or her family (with father, mother, grandfather, grandmother)?
When a couple living with their family gets a divorce, if their property cannot be determined separately from the common property of the family, the husband or wife is entitled to a division of part of the family’s common property based on the couple’s contributions to the creation, maintenance and development of the family’s community property as well as to the general life of the family. The couple shall reach an agreement with their family on their portion divided from the family’s community property. If they fail to reach an agreement thereon, they may request settlement by a court.
In case spouses live together with their family if spouses’ property in the family’s community property can be determined in fair share when divorce, then the spouses’ property shall be taken from that community property to be divided under Article 59 of the Law on Marriage and Family 2014.
A spouse who requests division of separate property that has been merged into or mixed with community property shall be paid for the value of his/her property contributed to community property, unless otherwise agreed by husband and wife.
Right of stay of spouses after divorce
It should be noted that under Article 63 of the 2015 Law on Marriage and Family, a house under separate ownership of either spouse and put into joint use shall still be owned by that spouse upon divorce; in case either the other partner has difficulty in accommodation, he or she has the right to stay at that house for 06 months at most from termination of the marital relationship unless otherwise agreed by the spouses.
We hope that the above article has provided readers with useful information.
Please note that the above information may change or the cited laws will expire subject to changes in legal regulations from time to time. For any questions or legal assistance in your divorce case, please contact us at letran@familylawyers.vn.
