A petition for recognition of a divorce by mutual consent, a divorce petition is a form of expressing the will of both spouses wishing the court to consider and handle the termination of their marital relationship. The following article will provide information related to divorce petitions/divorce complaints and information on how to draft these types of divorce petitions.
Under Article 55 of the 2014 Law on Marriage and Family, the Court recognizes a mutual consent divorce in cases both spouses jointly request a petition for divorce, if the Court finds that the spouses wish to have a voluntarily mutual consent divorce and have agreed on 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.
In case of a mutual consent divorce, both spouses shall file a petition for recognition of a mutual consent divorce, child custody, and property division to a competent court. This petition must include some of the following contents:
In the event of a divorce by mutual consent, the principle of agreement on property division, custody, and education of children will prevail, and this agreement must ensure the rights and legitimate interests of their children. If the spouses fail to reach an agreement or the agreement cannot ensure the rights and legitimate interests, the spouses may request the Court to divide the property and decide on child support obligations. The support level of the child support payer or his/her guardian will be based on his/her income, the actual ability of the child support payer, and the actual needs of the supported child/children.
In the event of failure to settle the divorce through negotiation or conciliation, either spouse may file a divorce complaint to the Court for disposition.
Article 56 of the 2014 Law on Marriage and Family stipulates divorce cases at the request of either spouse, also known as a unilateral divorce, as follows:
A unilateral divorce petition shall also be made as a complaint; therefore, it will be based on the regulations on the lawsuit petition form No. 23-DS under Resolution No. 01/NQ-HDTP. Such a petition shall include:
Contents of the divorce petition: You need to specify the time of marriage registration in a unilateral divorce petition form (for example marriage registered in 2009) and living together and where your living location is and if you are currently living together with your spouse, or from when you have been separated. This section of the unilateral divorce petition form is also used for drafting the marital conflict status and cause of conflict.
The section on children from the marriage: Specify information on children (inclusive of full name and date of birth), the petitioner’s wishes, and request for children custody if the spouses have children from their marriage. If the spouses have no children from the marriage, specify None.
The section on community debts: Specify the number of debts (monetary or property debts, creditors, repayment schedule, etc …) in the unilateral divorce petition form, if any, and propose assigning debt repayment obligation to which spouse in the petition. If no community debts, specify None.
Divorce documents include the following documents:
In case of lack of any above documents:
Under Article 28 of the 2015 Civil Procedure Code, disputes on marriage and family fall under the court’s jurisdiction.
For the jurisdiction by level, Point a, Clause 1, Article 35 of the 2015 Civil Procedure Code stipulates that the district-level People’s Court has the jurisdiction to settle first-instance divorce procedures.
For territorial jurisdiction, Points a and b, Clause 1, Article 39 of the 2015 Civil Procedure Code stipulate that:
Article 39. The territorial jurisdiction of courts
a) The Courts of the localities where the defendants reside or work, applicable to defendants being individuals, or where the defendants are headquartered, applicable to defendants being agencies or organizations, shall have the jurisdiction to settle according to first-instance procedures for civil, marriage- and family-related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code;
b) The involved parties shall have the right to agree with each other in writing to petition the Courts of the localities where the plaintiffs reside or work, applicable to plaintiffs being individuals, or where the plaintiffs are headquartered, applicable to plaintiffs being agencies or organizations, to settle civil, marriage and family-related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code;”
Accordingly, in both cases of a divorce by mutual consent and a unilateral divorce, if the spouses can reach an agreement, they may go to the district court where the spouse resides or works to carry out the divorce procedures. The district court of the localities where the defendant (the person subjected to divorce request) resides and works will have jurisdiction to settle in case the spouses cannot reach an agreement.
Divorce cases involving foreign elements in which the plaintiff or defendant is a Vietnamese citizen or the involved persons are foreigners residing, doing business, or living on a long-term basis in Vietnam fall under the jurisdiction of the Vietnamese Courts under Article 469 of the 2015 Civil Procedure Code.
Clause 3, Article 35, and Article 37 of the 2015 Civil Procedure Code stipulate that the provincial-level People’s Courts have the jurisdiction to settle divorces involving foreign elements.
If the divorce case is between a Vietnamese citizen residing in a border area and a citizen of a neighboring country residing in a border area with Vietnam, then the jurisdiction belongs to the people’s district court under Clause 4, Article 35 of the Civil Procedure Code 2015.
Article 51 of the 2014 Law on Marriage and Family stipulates that:
Article 51. Right to request divorce settlement
The subjects entitled to file for divorce according to the above provisions can be both spouses; either spouse; father, mother, or next of kin of a spouse. Therefore, it is not always mandatory that both spouses sign their divorce petitions. The signature of both spouses is not required in case divorce is requested by one spouse.
Currently, the 2014 Law on Marriage and Family only prescribes basic contents to be included in a divorce petition and has no requirements for either handwritten or typed divorce petition. However, some courts may not accept a handwritten divorce petition. Therefore, you should consider choosing an appropriate form of a divorce petition to make sure that the Court will not reject your petition.
Article 52 of the 2014 Law on Marriage and Family prescribes that “Grassroots-level conciliation is encouraged when a husband or a wife requests a divorce”. Accordingly, grassroots-level conciliation is prescribed by Clause 1, Article 2 of the 2013 Law on Grassroots Conciliation as follows: “Grassroots conciliation is the practice of a mediator who guides and helps the involved persons to reach an agreement and voluntarily mutually resolve their conflicts, disputes, violations of the law under this Law”. In which, the grassroots locations are hamlets, villages, village equivalent areas, residential groups, towns, quarters, and other residential communities.
As such, the Law does not mandatorily require grassroots-level conciliation, it only encouraged the involved persons to jointly reach an agreement, and voluntarily resolve their disputes and conflicts respectively.
However, it should also be noted that under Article 54 of the 2014 Law on Marriage and Family, after accepting the divorce petition, the Court conducts conciliation by the law on civil legal proceedings. Therefore, conciliation at court, in this case, is mandatorily required.
Clause 4, Article 147 of the 2015 Civil Procedure Code prescribes that the plaintiff must bear the first-instance court fee in the divorce case, regardless of whether the court accepts or does not accept the plaintiff’s request. Each of the involved persons shall bear half of the first-instance court fee in case of a petition for divorce by mutual consent.
Accordingly, the first-instance civil court fee applicable to divorce without property dispute, or with a dispute over property without monetary value according to Resolution No. 326/2016/UBTVQH14 is VND 300,000.
Additionally, if the spouses have a property dispute, under Clause 5, Article 27 of Resolution No. 326/2016/UBTVQH14, apart from the first instance civil court fee, the involved persons shall also cover the first-instance court fee for the part of the disputed property as in the case of a civil case with a monetary value for the part of the property to which they are entitled.
Upon filing a divorce petition or complaint, the involved persons shall advance the first-instance court fee for the Court to accept the case, and the payment shall be effected after the Court issues a decision. Clause 2, Article 7 of Resolution No. 326/2016/UBTVQH14 prescribing the first-instance civil court fee advance in a civil case without a value is equal to that without value. The amount of the first-instance court cost advance in a civil case involving a monetary value is equal to 50% of the first-instance civil court cost amount estimated by the courts, based on the value of the disputed property to be settled at the request of the involved parties. The minimum value of such advance is not less than the first-instance court cost amount in a civil case without a monetary value.
According to the above analysis, each spouse shall pay a court fee advance of 150,000 VND if the spouses mutually agree to divorce. In case either spouse files a unilateral petition for divorce without property dispute with a dispute over property with no monetary value, the petitioner shall pay a court fee advance of 300,000 VND. If the unilateral divorce petition involves a property dispute, the court fee advance will depend on the value of the property and the request of the petitioner.
To wrap it up, the above-mentioned are guidelines on how to draft a divorce petition under civil law and the Law on Marriage and Family. Hope the above article provides 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 legal assistance in your divorce case or if you have any questions, please contact us – at firstname.lastname@example.org.
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Le & Tran Building – Headquarters: Area No. 284 (Bld 9), Nguyen Trong Tuyen Street, Ward 10, Phu Nhuan District, Ho Chi Minh City
Saigon Tower – City Center Office: Unit 8, Level 16, 29 Le Duan Blvd, Ben Nghe Ward, District 1, Ho Chi Minh City, Vietnam
Daeha Business Center – Ha Noi Office: No.1606, 16th Floor, 360 Kim Ma Street, Ba Dinh District, Hanoi City