Where can a divorce with a foreigner be processed?

Legal situation: Hello lawyer, I would like to seek your advice on the following matter: I am a Vietnamese citizen, and in 2021, I got married to my husband who is from China in Vietnam. Both of us are currently living and working in Hanoi, and we do not have any children or common assets. Recently, we have been experiencing numerous conflicts and disagreements, and we both desire to get a divorce. I would like to inquire about which authority has the jurisdiction to handle this. I kindly request your legal advice. Thank you, lawyer!

Answer:

Thank you for reaching out to FDVN Law Firm (FDVN). Regarding your consultation request, after studying the relevant legal provisions, FDVN has the following exchange:

- According to Article 3, Clause 14 of the Law on Marriage and Family 2014, it is defined that: "Divorce is the termination of the marital relationship by a legally effective judgment or decision of the Court."

According to Clause 25, Article 3 of the Law on Marriage and Family 2014, the cases determined as having foreign elements in marriage and family relationships are as follows: "Marriage and family relation involving foreign elements means the marriage and family relation in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for establishing, changing or terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad."

Therefore, your divorce case involves foreign elements.

- According to Article 127 of the Law on Marriage and Family 2014, the divorce with foreign elements is as follows:

“1. Divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency in accordance with this Law.

2. In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.

3. The settlement of a divorced couple’s immovables in a foreign country must comply with the law of the country where such immovables are located.”

According to Point d, Clause 1, Article 469 of the 2015 Civil Procedure Code, the general jurisdiction of Vietnamese courts in settling civil cases involving foreign elements is as follows: The divorce cases with the plaintiffs or the defendants being Vietnamese citizens or involved parties being foreigners who reside, work or live for a long term in Vietnam. According to Point b, Clause 1, Article 470 of the 2015 Civil Procedure Code, separate jurisdiction of Vietnamese courts for civil cases involving foreign elements is as follows: “Divorce case between a Vietnamese citizen and a foreign citizen or a stateless person if both spouses reside, work or live permanently in Vietnam” Thus, the Court in Vietnam will have separate jurisdiction to handle your divorce case.

- According to Point c, Clause 1, Article 37 of the 2015 Civil Procedure Code, in the case of a divorce case where one of the litigants is a foreigner, the jurisdiction belongs to the provincial People's Court.

Point a, Clause 1, Article 39 of the 2015 Civil Procedure Code provides for the jurisdiction of courts to settle civil cases by territory as follows: “a) 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, shall have the jurisdiction to settle according to first-instance procedures for civil, marriage- and family-related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code;”

Point h, Clause 2, Article 39 of the 2015 Civil Procedure Code provides for the Court's jurisdiction to settle civil matters by territory as follows: “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;” If you unilaterally want to file for divorce, the People's Court at the provincial level where your husband is currently residing in Vietnam (the People's Court of Hanoi) is the competent authority to handle the case.

The above is the advisory opinion of FDVN regarding your consultation request based on the study of relevant legal provisions. We hope that FDVN's advisory opinion will be helpful to you.

According to Vu Dinh Thang - FDVN Law Firm.

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