The procedures for recognition of voluntary divorces

Posted date: 21/04/2020

We got married in 2010. After that I went to America to work and live up to now but have not obtained U.S citizenship yet. At present, the affections between me and my spouse no longer exists, we reach an agreement on voluntary divorce. I want to ask how the divorce procedure is and whether I am absent when dealing with it. Looking forward to your consulting service.

FDVN’s opinion:

Sincerely thank you for concerning our legal consulting service. We are glad to give you our advice on your question.

“Divorce” means termination of the husband and wife relationship under a court’s legally effective judgment or decision (It is stipulated in Clause 14, Article 3 of the Law on Marriage and Family 2014). Husband or wife or both have the right to request a court to settle their divorce under current law (It is stipulated in Clause 1, Article 51 of the Law on Marriage and Family 2014).

According to information provided by you, you and your spouse agree on divorce. So, when both spouses request divorce, a court shall recognize divorce by mutual consent if seeing that the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children based on ensuring the legitimate interests of the wife and children. If the spouses fail to reach an agreement or have reached an agreement which -fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce. (it is stipulated in Article 55 of the Law on Marriage and Family 2014).

[1]. A voluntary divorces registration

- Petition for recognition of voluntary divorces and agreements on child custody and property division upon divorces

- The marriage certificate (original);

- The copy of household registration book and identity card

- The copy of the child's birth certificate (if there are agreements on child custody);

- The copies of other accompanying materials and/or evidence to prove common property, such as the certificate of land use rights; vehicle registration; passbook… (in case there are agreements on property division)

[2]. The Courts competent to settle

According to Clause 1, Article 51, Point b, Clause 2, Article 35 and Clause 3, Article 35 of the Civil Procedure Code 2015, when there is one of the involved parties living overseas, the People’s Courts of the province shall have the jurisdiction to settle the voluntary divorcea.

Besides, according to Point h, Clause 2, Article 39 of the Civil Procedure Code 2015:

“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;”

Thus, according to the provisions mentioned above, you and your spouse can negotiate to choose the People’s Courts of provinces of the locality where either of the residents resides to submit the petitions for recognition of voluntary divorces and agreements on child custody and property division upon divorces.

[3].The order of execution

According to Article 363, Article 365, Article 366 of the Civil Procedure Code 2015 and Article 57 of the Law on Marriage and Family 2014, the order of the petitions for recognition of voluntary divorces and agreements on child custody and property division upon divorces are as follows:

Step 1: You submit one set of the valid dossier to the People’s Courts of provinces as mentioned above.

Step 2: The competent court shall receive the dossiers. Within 03 working days from the day on which the petitions are received, the Chief Justices of Courts shall assign one Judge to settle the petition.

If the petition and accompanied materials and/or evidence are deemed satisfactory to be accepted, the Judge shall carry out as follows:

- The Court shall notify the petitioner about the payment of the charge for civil matter resolution within 05 working days from the day on which the notice of charge payment is received unless such petitioner is exempted from the charge as prescribed in law on fees and charges;

- The Court shall accept the petition when the petitioner submits to the Court the receipt of civil-matter resolution charge;

Step 3: Within 03 working days from the day on which the cases are accepted, the Judge must send written notices to plaintiffs, defendants, agencies, organizations, and individuals with rights and obligations related to the settlement of the case, to the procuracies of the same level on the Courts’ acceptances of the case.

Step 4: The Judge makes the preparation and the decisions to open the meetings for consideration of the petitions.

The time limit for preparation for petition consideration shall be 01 month from the day on which the Court accepts the petition. During the time limit for preparation, The Court shall issue the decision to open a meeting to resolve and open a meeting to resolve within 15 days from the day on which the decision to open the meeting is issued.

Step 5: The Court issued the decision to recognize voluntary divorces

The marriage relation shall terminate on the date decision to recognize voluntary divorces takes legal effect.

[4].Absent when participating in resolving civil matters.

It is stipulated in Clause 2 - Article 367 of the Civil Procedure Code 2015 that:

“Article 367.Participants in meetings for resolving civil matters

…

2. The petitioner or their lawful representatives or defense counsels of their rights and interests must participate in the meeting according to the summon of the court.

If the petitioner is absent for the first time, the Court shall postpone the meeting, unless the petitioner request the Court to resolve the civil matter in their absence. If the petitioner has been duly summoned twice but is still absent, he/she shall be deemed to waive his/her petition and the Court shall issue the decision to terminate the resolution of the civil matters; in this case, the right to request the Court to resolve the civil matter according to the procedures prescribed by this Code shall still be guaranteed.

….”

As such, if you cannot participate in meetings for resolving voluntary divorces, you can apply to the Court to suggest resolving in your absence, in which you must clearly state the reason. Under your suggestion, the Courts shall continue resolving the cases according to procedures to the recognition of voluntary divorces between you and your spouse with your absence. However, in reality, the Court's trial needs the full presence of the parties at least 01 time. So that the Court can acknowledge directly the voluntary divorce agreement and agree to resolve issues arising upon divorce.

Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful.

Legal Expert: Nguyen Thi Suong

FDVN Law Company.

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