Divorce and Division of Assets

Things to Know When Performing Divorce Proceedings

Author
Hannah Huynh

Divorce is the last solution for a marriage when it has come to a dead end.  Getting divorce is a way to resolve all conflicts in a civilised way, in accordance with the law when the parties have decided to leave each other.  How to do it? The question is simple but it is in fact complicated.  They must understand many legal issues.  Our mission is to help you understand some of the issues when encounter this process.

Right to request divorce settlement

Who has the right to request a divorce settlement?

  • Spouses or both of them have the right to ask the Court to resolve the divorce.  However, the husband does not have the right to request a divorce in case the wife is pregnant, giving birth or raising children under 12-month old.
  • Parents and other relatives have the right to request the Court to settle a divorce when a 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 mental spirit.

Grounds for divorce settlement

Divorce by mutual consent

Both spouses request a divorce, the two parties actually voluntarily divorced and agreed on the division of property, the custody, upbringing and caring for the children, and education of the children on the basis of ensuring the legitimate rights of the wife and children.   

Divorce at the request of one spouse

When the wife or husband insists on divorce and the other does not agree to divorce; and was reconciled in Court but failed, the Court only settles for divorce if there are grounds for the spouse to commit domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer possible and the marriage purposes unachievable.

Procedures for divorce

Since the characteristics of divorce by mutual consent and divorce at the request of one spouse are completely different, the settlement procedure is also different.  Divorce at the request of one spouse is settled according to the procedure of a civil dispute.  Meanwhile, divorce by mutual consent is settled according to the procedure of a civil matter.

The process for the divorce at the request of one spouse

For the divorce at the request of one spouse, the process will be carried out according to the following steps:

  • Step 1: Submit the Petition

The spouse (who wants a unilateral divorce) submits a Petition with documents and evidence to the competent People’s Court.

  • Step 2: Pay advance Court fees and the Courts accepts the lawsuit

The Court reviews the petition document.  If the conditions are met, the Court notifies the litigator to pay the advance Court fees.  The Court accepts the lawsuit when the litigator submits to the Court a receipt for the payment of the advance Court fees.

  • Step 3: Mediation

If the conciliation is successful: The Court makes a record of the successful conciliation and after 07 days if the partners do not change their opinions, the Court will issue a decision to recognize the satisfaction of the requirements.

If the conciliation fails: The court brings it to trial.

  • Step 4: First-instance trial

After the trial, the Court will issue a judgment dealing with issues of marital relations, common children and common property between husband and wife.

If one of the parties does not agree with the content of the first-instance judgment, he/she can appeal under the appellate procedure.

The process for the divorce by mutual consent

For the divorce by mutual consent, the process will be carried out according to the following steps:

  • Step 1: Submit a written request for recognition of the divorce by mutual consent

Spouses submit a written request for recognition of divorce by mutual consent accompanied by documents and evidence proving the agreement on divorce, custody, property division upon divorce to the competent People’s Court.

  • Step 2: Pay the advance Court fees and the Court accepts the written request

The Court reviews the documents.  If the conditions are met, the Court notifies for the payment of advance Court fees.  The Court accepts the written request when the spouses submit the receipt for the payment of the advance Court fees. 

  • Step 3: Mediation and recognize the divorce 

If the conciliation is successful: The court suspends the settlement of the couple’s divorce request.

If the conciliation fails: The court recognizes the agreement of the divorce and the agreement of the husband and wife.

Documents for carrying out divorce proceedings

  • Marriage registration certificate.
  • Household registration book.
  • ID card/passport of spouses.
  • Birth certificate of children.
  • Documents and evidence of common property.
  • Documents and evidence of debts and obligations of spouses during the marriage.
  • The other relevant documents (if any).

Above are some things to know about divorce proceedings.  Feel free to contact us for more detailed instructions: letran@familylawyers.vn 

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