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Official Gazette

Tuesday, December 12, 2017

Unilateral divorce from abroad

Updated: 00:00’ - 02/06/2014

I married a Vietnamese woman five years ago in Vietnam, but our marriage is unhappy. Now I’m living in Germany and she is residing in Vietnam. I want to divorce but she doesn’t agree. May I file an application for divorce by post and be absent from the hearing?

According to Vietnamese law, you may file your lawsuit and send accompanying documents and evidences to the People’s Court of the province where your wife resides to settle your case by either of the following modes:

- Direct filing at the court;

- Sending documents to the court by post.

The date of initiating a lawsuit is the date on which the lawsuit is filed at court or the postmarked date of sending the lawsuit.

Documents and evidences to be filed for applying for divorce in Vietnam include:

- A divorce application;

- A marriage registration certificate (the original);

- A certified copy of your passport;

- Certified copies of birth certificates of your children (if any);

- Title documents and other evidences of property: houses, cars, bank account, etc…

The court will proceed with hearing the case in the following cases:

- The plaintiff, the respondent or persons with related interests and obligations and their representatives who are absent from the hearing make written requests for the court to conduct the hearing in their absence;

- The plaintiff, the respondent or persons with related interests and obligations who are absent from the hearing have their lawful representatives attending the hearing;

- If the respondent or a person with related interests and obligations who makes no independent claim is absent without a representative attending the hearing, the court may conduct the hearing in his/her absence;

- If the defense counsel of the rights and legitimate interests of an involved party is absent, the court may conduct the hearing in his/her absence.

However, for divorce cases, the involved parties may not authorize others to represent them in civil procedures. So, if you cannot show up at the court, you have to file a written request for the court to conduct the hearing in your absence.

How does Vietnamese law provide the division of property upon divorce?

According to Vietnamese law, upon a divorce, the division of property must be agreed upon by the concerned parties. If they fail to reach an agreement, they may request the court to settle it. Personal property of a spouse will still belong to him/her.

- Common property of husband and wife includes property created by both husband and wife, incomes generated from their labor, production and business activities and other lawful incomes of husband and wife during the marriage period; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.

The land use rights obtained by husband and wife during their marriage are their common property. The land use rights obtained before the marriage or personally inherited by husband or wife become common property only if so agreed upon by husband and wife.

- Personal property of husband and wife includes property owned by each spouse before their marriage; property inherited by or given separately to him/her during the marriage period; personal belongings and jewelry; and property separately divided to spouse as follows:

+ When the marriage exists, if husband and wife carry out separate business and investment activities, perform separate civil obligations or there are other plausible reasons, husband and wife may agree to divide their common property. The division of common property must be recorded in writing. If they fail to reach an agreement, they may request the court to settle it.

+ Where common property of husband and wife is divided, yields or profits arising from the divided property will belong to the ownership of each spouse. The undivided property portion remains under the common ownership of husband and wife.

Husband and wife may pool or refuse to pool their personal property into the common property.

The division of common property is based on the following principles:

- The common property of husband and wife will, in principle, be halved, with due consideration given to each spouse’s situation, the property status, each spouse’s contributions to the creation, preservation and development of the common property. The housework done in the family by husband and wife is regarded as income-generating labor;

- The legitimate rights and interests of wife, minor children or adult children who are disabled, have lost their civil act capacity, have no working capacity and no property to support themselves, are protected;

- The legitimate interests of each party in their production, business and career activities are protected to provide them with adequate conditions to continue their income-generating labor;

- The common property of husband and wife is divided in kind or according to its value; the party who receives his/her property portion in kind which has a value bigger than the portion he/she deserves, will have to pay the value difference to the other party.

The settlement of joint property obligations of husband and wife is agreed upon by themselves; if they fail to reach an agreement thereon, they may request the court to settle it.-


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