Ending a marriage is a very difficult decision for couples. No one wants it, but they have to accept it. And the journey to make that decision is not an easy one. What about the legal procedures and documents? Where to file a petition for divorce? Which agency is responsible for handling divorce cases?… There are many issues that need to be clarified.
Divorce means termination of the husband and wife relation under a Court’s legally effective judgment or decision. To be divorced, husband and wife need to determine who has the right to request for settlement of divorce.
Article 51 of Family and Marriage Law 2014 states regarding the right to request settlement of divorce that: Husband or wife or both has or 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 when the 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. So, husband, wife, or a third party as identified above shall have the right to request for settlement of divorce.
Pursuant to the forms of settlement of request for divorce, there are two types of divorce:
Divorce by mutual consent: Both husband and wife consent and agree to a divorce, also known as divorce by mutual consent or voluntary divorce.
Unilateral divorce: Either husband or wife insists on a divorce while the other does not agree to a divorce, also known as unilateral divorce or a divorce at the request of one party.
Each type of divorce requires different conditions. Details are as follows:
According to Article 39 of Civil Procedure Code 2015 regarding territorial jurisdiction of courts, it states that:
“Article 39. Territorial jurisdiction of courts
h. The Court of the area where one of the parties to a voluntary divorce, agreed child custody or property division resides or works shall have the jurisdiction to resolve the petition for recognition of the voluntary divorces and the agreement on child custody and property division upon divorces;”
So, people’s courts of districts, towns and cities under provinces, collectively referred to as district-level People’s Courts, have the competence to settle civil, marriage and family disputes under first-instance procedures. When husband and wife want to carry out divorce procedures, they must submit the petition to the district-level People’s Court where the couple lawfully reside for settlement. Specifically:
In case there are involved parties or property in a foreign country or it is necessary to entrust judicial authority to an overseas representative mission, it shall fall under the competence of the province-level People’s Court.
In fact, there are currently a few people that don’t know where to file a petition for divorce as they work far from home. Can they file a petition for divorce at their place of temporary residence?
Clause 1 Article 11 of Residence Law 2020 clearly states that: The place of residence of a citizen includes a permanent residence and/or a temporary residence.
Therefore, the Court in place where the defendant resides (unilateral divorce) or the Court in place where one of the spouses resides (divorce by mutual consent) is the one in place of permanent residence or temporary residence.
From above provisions, when carrying out divorce procedures, they can file for divorce at district-level People’s Court where the spouses temporarily reside.
Point a, Clause 1, Article 39 of Civil Procedure Code 2015 on territorial jurisdiction of courts on civil cases states that:
“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;”
So, in case of unilateral divorce with a person currently under imprisonment sentence, one can file a petition for divorce to the people’s court of the district where that person resided before serving the sentence.
Pursuant to Clause 1, Article 190 and Clause 1, Article 363 of Civil Procedure Code 2015, if one wants to divorce, he or she can file a petition to the Court by any of following manners: Send directly to the Court, by post, online through the Court’s Portal (if any). Thus, husband and wife that want to file for divorce can submit a petition online if the Court has an e-portal.
How to file a petition for divorce online:
After submitting a petition for divorce online, you need to regularly log in to the system to check and receive legal documents sent by the court through the system.
Although allowing online submission of petition for divorce can be seen as a form of administrative reform in order to shorten travel time and reduce negative effects in the implementation of legal proceedings, in fact, however, it shows that submitting a petition for divorce online still has many inadequacies that make it difficult for people in need. Therefore, if it is not due to force majeure, currently, you should submit a petition for divorce by direct method or by post.
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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