Divorce with foreign elements is complicated in legal regulations and settlement for not only involved parties but also the settling court. The article below will indicate the points to note for divorce involving foreign elements.
1. Specific cases of divorce with foreign elements
Between Vietnamese citizens and foreigners (Foreigners are the people without Vietnamese nationality);
Between foreigners permanently residing in Vietnam;
Between Vietnamese citizens who got married and recognized overseas;
Between spouses who are Vietnamese citizens and not permanently residing in Vietnam together or both residing overseas at the time of request for divorce (For example Petition for divorce of Ms. A, a Vietnamese citizen currently residing in Hoang Mai District, Hanoi and Mr. B, a Vietnamese citizen formerly residing in Hoang Mai District, Hanoi, currently laboring in South Korea since 2015);
The property being real estate related to the divorce is currently located abroad (For example Divorce dispute between Ms. A and Mr. B both being Vietnamese over the determination of their common property which is a plot of land located in California, United States).
2. Applicable law
According to Article 127 and Article 122 of the Law on Marriage and Family No. 52/2014/QH13 promulgated by the National Assembly specifying divorces with foreign elements, both Vietnamese law and foreign law are applicable to settle divorces with foreign elements. In case a treaty to which the Socialist Republic of Vietnam is a party contains provisions different from those of Vietnamese law, the provisions of such treaty prevail, or a treaty to which the Socialist Republic of Vietnam is a party refers to the application of foreign law, such foreign law shall be applied. The burden of proof for the foreign law to be applicable falls on the settling court.
Vietnamese legal provisions on the applicable law to the resolution of divorce with foreign elements cause difficulties for the Court to resolve and determine the grounds for the request for dispute settlement for the involved parties.
3. Conditions for Vietnamese courts to settle divorce cases with foreign elements
Firstly, if a couple got married in Vietnam then the husband or the wife exits abroad (his/her address cannot be found), it requires confirmation by the local authority on the exit of the spouse.
Secondly, if the two parties who have registered their marriage according to foreign law want to get divorced in Vietnam, they must consular register their marriage and carry out the procedures for noting the marriage registration at the Department of Justice before submitting the divorce application. In case the parties do not conduct the noting yet still want to divorce, the reason must be clearly stated in the divorce petition.
Besides, for the case of unilateral absence divorce involving foreign elements, it requires confirmation and trustee of absence from the Embassy. The court will accept the case and settle it following the law on marriage and family. The settlement time may last from 6 months to 1 year. Within this period, the court will refer a document to the Embassy about the judicial entrustment to settle the case as unilateral absence divorce with foreign elements.
4. Competence to settle a divorce with foreign elements
Regarding the court’s jurisdiction by level: The cases of divorce with foreign elements (a spouse is abroad or the property is overseas) will fall under the jurisdiction of the provincial-level People’s Courts (Article 36 of the Civil Procedure Code 2015). Particularly for the special case mentioned in Clause 4 Article 35 of the Civil Procedure Code 2015, if the divorce is between a Vietnamese citizen living in the frontier areas and a citizen of a neighboring country living near Vietnam, the competence to settle such divorce belongs to the district-level People’s Courts.
Regarding the court’s jurisdiction by territory: According to Article 37 of the Civil Procedure Code 2015, the court’s competence by territory to settle marriage and family disputes is prescribed to belong to 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.
However, the plaintiff still has the right to choose the court to settle the disputes over marriage and family among the cases stipulated in Clause 1, Article 40 of the Civil Procedure Code 2015 if the plaintiff does not know where the defendant resides or the defendant does not have a residence.
5. Other points to note
This is a case of dispute over the right to raise children in a divorce involving foreign elements when one of the parties does not reside in Vietnam at the time of request for divorce. In such cases, it is considered that Vietnamese courts still accept and settle absence divorce cases with foreign elements in general and unilateral divorce in particular when the defendant cannot attend the trial. Regarding the disputes over the right to raise children among involved parties, that a party is abroad making them less favorable when the common children are in Vietnam. That is reflected in the view of the court in judgment No. 59/2016/HNGĐ-ST dated May 30th, 2017 on “Marriage and Family dispute” between the plaintiff who is Ms. Dau Thi H, born in 1992, residing at the address of hamlet 16, commune D, district Y, Nghe An province and the defendant who is Mr. Tran Khac T, born in 1985, currently residing in the Federal Republic of Germany (absent at the trial), the two parties have a dispute arising in the request of divorce and the right to raise children. On the side of the defendant, Mr. T presented in the court’s opinion asking for an official letter: “Due to Ms. H’s ineligibility of a mother, neglecting and being irresponsible to her child, he wants to nurture the child and commits that he will sponsor the child to come to Germany. Now that he does not have the means to bring the child along, he relies on his natural parents, Mr. Tran Khac D and Ms. Thai Thi K, to take care of the child while he is away.”
Considering that Mr. T’s request is legitimate, however, currently, Mr. T is in a foreign country and cannot directly nurture the common child. According to legal regulations on marriage and family, caring and raising common children is a right and also an obligation of spouses after the divorce which cannot be assigned to other people. Furthermore, Mr. T supposes that she is ineligible as a mother yet there is no evidence to prove it. Therefore, the court assigns Ms. H to care for and raise Tran Khac Viet Anh.
This is the article advising on “Points to note when a divorce involves foreign elements” by Apra Law Firm. If you have any questions or concerns, please contact the hotline for further advice and support.
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