Under Clause 14, Article 13 of the Law on Marriage and Family 2014 explains the term divorce as follows:
“Divorce is the termination of a conjugal relationship according to a legally enforceable judgment or decision of the Court.”
At the same time, under Clause 25, Article 3 of the Law on Marriage and Family 2014, the explanation of marriage relations with foreign elements is as follows:
“Marriage and family relations with foreign elements are marriage and family relations in which at least one party is a foreigner or overseas Vietnamese; marriage and family relations between the parties are Vietnamese citizens but the grounds for establishing, changing or terminating such relations according to foreign laws, arising abroad or assets related to such relations abroad.”
Thus, it can be understood that unilateral divorce with foreign elements is the fact that one spouse has a request for divorce in which at least one party is a foreigner or a Vietnamese residing abroad. Marriage and family relations between the parties are Vietnamese citizens but grounds for establishing, changing, or terminating such relations according to foreign laws, arising abroad, or assets related to such relations abroad.
II. Competence to settle.
Under Clause 2, Article 123 of the Law on Marriage and Family 2014, there are the following provisions:
“The competence to settle marriage and family cases involving foreign elements at the Court shall exercise by the Code of Civil Procedure provisions.”
Accordingly, the Code of Civil Procedure will govern the competence to settle marriage cases, including consent to divorce with foreign elements.
Clause 1, Article 37 of the Civil Procedure Code 2015 stipulates as follows:
“Provincial-level People’s Courts shall have jurisdiction to settle according to the procedures of the first instance the following cases:
a) Civil, marriage and family, business, commercial and labor disputes specified in Articles 26, 28, 30, and 32 of this Code, except for disputes falling within the jurisdiction of district-level People’s Courts specified in Clauses 1 and 4, Article 35 of this Code;
b) Civil, marriage and family, business, commercial and labor requirements specified in Articles 27, 29, 31, and 33 of this Code, except for requests falling under the jurisdiction of district-level People’s Courts specified in Clauses 2 and 4, Article 35 of this Code;
c/ Disputes and requests specified in Clause 3, Article 35 of this Code.”
Therefore, according to regulations, unilateral divorce cases with foreign elements will be handled by competent provincial-level people’s court agencies.
III. Unilateral divorce proceedings involving foreign elements.
Under Clause 1, Article 53 of the Law on Marriage and Family 2014 stipulates as follows:
“The court accepts the petition for divorce by the law on civil procedure.”
Thus, unilateral divorce proceedings involving foreign elements in Vietnam that are required to be settled in Vietnam will be applied according to the procedures in the current Civil Procedure Code of Vietnam.
Divorce procedures for foreigners in Vietnam are settled in the following order:
Step 1: File a lawsuit for divorce at the competent province/city;
Step 2: After receiving the petition with a valid dossier, the Court shall notify the payment of advance court fees;
Step 3: Pay the advance court fee at the competent civil judgment enforcement agency and return the receipt of the advance court fee to the Court;
Step 4: The court will convene and conduct procedures by the law.
IV. Time for settling unilateral divorce proceedings involving foreign elements
In the provisions of the Law on Family Marriage 2014 and the Civil Procedure Code 2015, there is no provision on how long it takes to settle a divorce case with foreign elements.
Based on the order of court proceedings as well as HT’s experience in settling in the field of marriage and family, the time to settle divorce cases with foreigners will usually take place as follows:
The period of unilateral divorce has foreign elements.
– The first instance level ranges from 04 to 06 months (if the defendant is absent, there is a property dispute, or other issues, it may take longer).
– Appellate level from 3 to 4 months (if there is an appeal).
– In case of divorce in absentia, the period ranges from 12 to 24 months (due to judicial fiduciary procedures).
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