The family is one of the central determining factors in the sustainable development of the country. As such, building prosperous, happy, and respectful families is one of the important ongoing goals of national renewal and development. However, not every marriage is smooth. Legal issues related to family, as well as the resolution of problems in family and marriage, have never been simple, requiring reasoning, consideration, understanding, and empathy.
To ensure uniformity, fairness, and efficiency in the litigation process when resolving cases related to marriage and family, on May 16, 2024, the Judicial Council of the Supreme People’s Court issued Resolution No. 01/2024/NQ-HĐTP guiding the application of legal provisions in resolving marriage and family cases. The purpose of this important Resolution is to enhance the quality of trials and protect the legal rights of the parties involved. The Resolution comprises 12 Articles and took effect on July 1, 2024. In this article, LeTran Law would like to introduce the contents of Resolution No. 01/2024/NQ-HĐTP:
Regarding the Right to Request Divorce
Article 2 of Resolution No. 01/2024/NQ-HĐTP guides the provisions of Clause 3, Article 51 of the Law on Marriage and Family: “Being pregnant” is the period, confirmed by a medical facility, when the wife carries the fetus until childbirth or termination of pregnancy. “Giving birth” also includes situations where the wife has given birth but does not raise the child who is under 12 months old, the child dies within 12 months from birth, or the wife is 22 weeks pregnant or more and must terminate the pregnancy.
Within 12 months from the day the wife gives birth or terminates pregnancy, the husband has no right to request a divorce.
Further, if the wife is pregnant, giving birth, and raising a child under 12 months old, regardless of who she is pregnant from or gives birth to, or whether the child is biological or adopted, the husband has no right to request a divorce.
In cases of surrogate pregnancy for humanitarian purposes, when the wife is pregnant, giving birth, or raising a child under 12 months old, both the husband of the surrogate mother and the husband of the requesting party have no right to request a divorce.
Regarding Mutual Consent Divorce
Article 3 of Resolution No. 01/2024/NQ-HĐTP guides the provisions of Article 55 of the Law on Marriage and Family: “Husband and wife both request a divorce” is when both parties request recognition of a mutual consent divorce, or one party files a lawsuit while the other agrees to divorce. Additionally, both parties must have mutual agreements on child custody, asset division upon divorce, child care, education for minors, adults losing civil capacity, or inability to work and have no property to support themselves. These agreements are not allowed to violate legal prohibitions or be contrary to social ethics.
Regarding Unilateral Divorce
The grounds for unilateral divorce under Clause 1, Article 56 of the Law on Marriage and Family are guided by Article 4 of Resolution No. 01/2024/NQ-HĐTP: “Domestic violence by husband or wife” is as defined in Clause 1, Article 3 of the Law on Domestic Violence Prevention and Control. “Serious violation of the rights and obligations of husband and wife” is a violation of the Law on Marriage and Family’s provisions on rights and obligations, severely infringing on the legal rights and interests of the other party. “Marriage is in a serious condition, common life cannot continue, the purpose of marriage is not achieved” includes lack of spousal affection, adultery, disrespect, harm to honor, dignity, reputation, mental distress, injury, health damage, inequality in rights and obligations, or disrespect for each other’s freedom.
Regarding Inheritance Division Limitations
Article 5 of Resolution No. 01/2024/NQ-HĐTP guides the division of the estate of a deceased spouse or a spouse declared dead by the Court. Division of the estate that severely affects the living conditions of the surviving spouse and family as per Clause 3, Article 66 of the Law on Marriage and Family and Article 661 of the Civil Code applies when the deceased leaves behind an estate after death, but dividing this estate among heirs leaves the surviving spouse and family in difficulties such as having no place to live or losing the sole production means, thus limiting the division of the estate.
Regarding Child Custody Upon Divorce
Article 6 of Resolution No. 01/2024/NQ-HĐTP guides the implementation of Article 81 of the Law on Marriage and Family. When considering “the child’s interests in all aspects,” it must be based on the parent’s conditions and ability to care for, raise, and educate the child, including the ability to protect the child from harm and exploitation. In addition, consideration must also be given to the child’s right to live with the direct caregiver, maintain relationships with the non-custodial parent, the child’s attachment to both parents, parental concern for the child, ensuring stability and minimizing changes in the child’s living and educational environment, and the child’s wish to live with siblings or with either parent. Taking opinions from minors aged seven and above must be friendly and suitable for their psychology, age, and maturity so the child can express their accurately and fully, avoiding psychological pressure and pressure.
Mothers who “fail to have sufficient conditions to directly care for, raise, educate the child” fall under one of the following cases: suffering from a serious illness or other severe condition that prevents self-care or direct child care, having a monthly income less than half the regional minimum wage where the mother resides and having no other assets, lacking minimum time conditions to directly care for, raise, and educate the child.
If the father’s conditions for child care are not better than the mother’s, the Court will decide to grant custody to the mother.
Regarding Child Support Obligation Upon Divorce
Article 7 of Resolution No. 01/2024/NQ-HĐTP guides the implementation of Clause 2, Article 82 of the Law on Marriage and Family. If the direct caregiver does not request support, and it is voluntary, the Court will not oblige the other party to provide support.
Child support shall cover all expenses for the child’s upbringing and education, as agreed upon by both parents. If the parents cannot agree, the Court will determine the child support amount based on the paying parent’s income, their actual ability to pay child support, and the child’s essential needs. However, the amount cannot be less than half of the minimum regional wage in the paying parent’s place of residence, per month, for each child. If the parties cannot agree on the method of child support payments, the Court shall determine the method as either monthly payments or another method that is appropriate for the child’s needs and interests, as well as the financial circumstances of the parent obligated to pay child support.
Regarding Parental Rights Limitations Over Minors
Article 8 of Resolution No. 01/2024/NQ-HDTP guides the implementation of Article 85 of the Law on Marriage and Family regarding limiting parental rights over minors in cases of:
- “Convicted of one of the crimes of intentionally infringing upon the life, health, dignity or honor of this child” means convicted by the Court with a legally effective judgment for one of the crimes specified in Chapter XIV of the Criminal Code against a minor with intentional fault.
- “Commits acts of seriously breaching the obligations to look after, care for, raise and educate children” means not fulfilling or inadequately fulfilling the obligation to care, raise, and educate the child, seriously affecting the child’s legal rights and interests or causing harm to the child’s comprehensive development.
- “Disperses property of the child” means buying, giving away, destroying, or other actions harming the child’s assets, which are not for the child’s benefit.
- “Leading a depraved life” means a lowly, corrupt, immoral, debased lifestyle contrary to customs and traditions.
- “Inciting, coercing the child to do illegal or unethical acts” means inciting, seducing, coercing by words, gestures, or any other form leading the child to perform illegal or unethical acts.
The Court can decide to limit parental rights over minors on its own or upon request and can decide to shorten the limitation period if the parent has served half of the imposed time.
Regarding Jurisdiction Over Marriage and Family Cases
Article 9 of Resolution No. 01/2024/NQ-HĐTP guides the determination of jurisdiction over marriage and family cases in some specific cases:
A marriage and family case involving a real estate dispute in which the defendant and plaintiff’s place of residence or work specified in Points a and b, Clause 1, Article 39 of the Civil Procedure Code differs from the location of the disputed real estate, the jurisdiction of the Court shall be determined in accordance with points a and b of Clause 1 of Article 39 of the Civil Procedure Code.
In cases where overseas Vietnamese parents file a lawsuit regarding the modification of child custody after divorce, and the shared child is currently residing in Vietnam, the jurisdiction for resolving the case shall belong to the Vietnamese Court in accordance with Clause d of Point 1 of Article 469 of the Civil Procedure Code.
Resolving Divorce Cases Where Defendants Are Overseas Vietnamese Citizens With Unknown Addresses
If a Vietnamese in the country applies for a divorce from a Vietnamese living abroad but can only provide the last known residence address of the defendant in Vietnam and not their address abroad, Article 10 of Resolution No. 01/2024/NQ-HĐTP guides resolution:
- If the defendant’s relatives in the country do not provide the address and do not fulfill the Court’s request to inform the defendant after the second notice, the Court will hold a trial in absentia according to general procedures.
- After the trial, the Court shall send a copy of the judgment and decision to the defendant’s relatives for them to forward to the defendant. The Court shall also publicly post a copy of the judgment and decision at the headquarters of the People’s Committee of the commune where the defendant last resided and where the defendant’s relatives reside, so that the parties may exercise their right to appeal in accordance with the law of civil procedure.
Regarding Court Fees in Resolving Marriage and Family Cases
Article 11 of Resolution No. 01/2024/NQ-HĐTP guides the imposition of court fees in paternity/maternity disputes according to the regulations, except for minors or persons who have lost their civil capacity to act.
In mutual consent divorce cases:
- If mutual consent is reached before the first-instance trial, each party bears 25% of the court fee.
- If mutual consent is reached at the first-instance trial, each party bears 50% of the court fee.
- If mutual consent is reached before the trial, but no agreement is reached on common children and assets, each party bears 25% of the court fee. For assets, each party bears the corresponding court fee.
The detailed guidance provided by Resolution No. 01/2024/NQ-HĐTP is expected to contribute to improving the predictability and quality of trials in marriage and family cases.
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