What are procedures for recognizing the divorce by mutual consent?

My wife and I got married in 2010.  Then, I’ve moved to America to live and work but I have not been a US citizen. Now, we do not love each other anymore, my husband has agreed to divorce by mutual consent. I want to know the process for mutual divorce. Is it possible for me to be absent during the process? Looking forward to hearing from you.

FDVN’s Opinion

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

According to the information you provided, you and your husband divorce by mutual consent. Therefore, in case both spouses request a divorce and the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children, a court shall recognize the divorce by mutual consent. 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. (Article 55 of Law on Marriage and Family 2014)

[1] Documents for divorce by mutual consent includes:

- A petition for recognition of a mutual divorce, raising children, or property division upon divorce;

- Marriage certificate (origin);

- Family Register and Identity card (Copy)

- Other documents and evidence proving common assets such as: Certificate of land use rights; Vehicle registration; Savings book ... (if there is agreement on property division) (copy).

[2] Court with jurisdiction

According to Clause 2 Article 29, Point b Clause 2 Article 35, and Clause 3 Article 35 of the 2015 Civil Procedure Code, the Court has the jurisdiction to settle mutual divorce when one of the involved parties is abroad is People’s Courts of provinces.

At the same time, at Point h, Clause 2, Article 39 of the 2015 Civil Procedure Code: 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, You and your husband can make a deal to choose the People's Court of the province where the spouse has registered permanent residence to file for recognition of mutual divorce, child-raising, and property division when divorce.

[3]. Procedures

According to Article 363, Article 365, Article 366 of the 2015 Civil Procedure Code and Article 57 of the 2014 Law on Marriage and Family, the procedures for recognizing mutual divorce, child-raising, and property division when divorce as follows:

Step 1: Submit 01 valid dossier to the People's Court of the province where one of you lives.

Step 2: The competent court will receive the petition. Within 03 working days from the day on which the petition and accompanied materials and evidences are received, the Chief Justice of the Court shall assign a Judge to handle the petition.

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

- The Court shall notify the petitioner about the payment of 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 submit to the Court the receipt of civil-matter resolution charge;

Step 3: Within 03 working days from the day on which the petition is accepted, the Court shall notify the petitioner, person with interests and duties relevant to the civil matter resolution and the procuracy of the same level in writing of the acceptance of the petition.

Step 4: The court preparation for consideration of applications and opens a meeting to resolve the request for recognition of divorce by mutual consent.

The time limit for preparation for petition consideration shall be 1 month from the day on which the Court accepts the petition, the Court shall issue decisions to hold a meeting for considering the application and open a meeting within 15 days, from the day issued the decision.

Step 5:  The Court issues the decision to recognize divorce by mutual consent.

Marriage and family relations end from the date the mutual divorce decision takes effect.

[4]. Absent when participating in resolving civil cases

 According to Clause 2 Article 367 of the Civil procedure code 2015:

“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 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 a 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…”

Thus, in case you cannot attend the divorce resolution session, you can send a written request to the Court to resolve the civil absence, then you do not have to participate in the divorce resolution session that the Court still resolves to recognize of mutual divorce between you and your wife.

This is FDVN’s Opinion related to your request. We hope this opinion will be helpful for you.

Nguyen Thi Lan Anh

FDVN Law Firm

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