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.
Who has the right to request for settlement of divorce?
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.
Bases and conditions to request for 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:
Conditions for divorce by mutual consent
- When both spouses are really willing to divorce
- When both spouses have agreed upon the property division, looking after, raising, care for and education of their children, etc.
Conditions for unilateral divorce
- A spouse commits domestic violence.
- A spouse seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible.
- A spouse is declared missing by a court.
- A spouse has a mental illness or another illness and is also a victim of domestic violence caused by the other person.
Submission of petition for divorce at the place of residence or marriage registration?
According to Article 39 of Civil Procedure Code 2015 regarding territorial jurisdiction of courts, it states that:
“Article 39. Territorial jurisdiction of courts
- Territorial jurisdiction of Courts to settle civil lawsuits shall be determined as follows:
- 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.
- 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.
- Disputes over real estates must be settled by Courts where such real estates are located.
- Territorial jurisdiction of Courts to settle civil matters shall be determined as follows:
…
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:
- For divorce by mutual consent: If husband and wife agree to divorce, they can agree to go to the court in place where the wife or husband resides to carry out the procedure.
- For unilateral divorce: The court of the place where the defendant resides and works will have the competence.
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.
Can I file a petition for divorce at a temporary residence?
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.
Where to file a petition for divorce with a person currently under imprisonment sentence?
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.
Can I file a petition for divorce online? How to file a petition for divorce online.
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:
- Step 1: Register an account via Nopdonkhoikien.toaan.gov.vn portal and register a digital signature on the system.
- Step 2: Log in to the system and select the function of composing a petition
- Step 3: Click on the function to submit the petition and confirm the digital signature to submit it 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.
We’ve provided you with instructions you need to know when submitting a petition for divorce. Please contact us for more detailed instructions: letran@familylawyers.vn .
