Divorce
means termination of the husband and wife relation under a court’s legally
effective judgment or decision.
What is the condition of divorce?
Firstly, we need
to know about subjects being entitled to request divorce settlement. That is
husband or wife or both having the right to request divorce settlement from a
Court; a parent or other relatives has the right to request divorce settlement
from a Court when the spouse is unable to perceive and control his/her acts due
to a mental disease or another disease and is concurrently a victim of domestic
violence caused by his/her spouse which seriously harms his/her life, health or
spirit. In addition, a husband has no right to request a divorce when his wife
is pregnant, gives birth or is nursing an under-12-month child.
The divorce is
divided into two cases, those are divorce by mutual consent and divorce at one
party’s request.
Conditions of divorce by mutual consent: if both wife and husband request a
divorce and both parties 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, the court shall settle the divorce a court shall recognize the
divorce by mutual consent; if the spouses fail to reach agreement or have
reached an agreement which fails to ensure the legitimate interests of the wife
and children, the court shall settle the divorce.
Divorce at one party’ s request: if a spouse requests a divorce and
the conciliation at a court fails, the court shall permit the divorce if there
are grounds to believe that a spouse commits domestic violence or seriously
infringes of the rights and obligations of the husband or wife seriously
deteriorates the marriage and makes their common life no longer impossible and
the marriage purposes unachievable. When the spouse of a person who is declared
missing by a court requests a divorce, the court shall permit the divorce. For
a parent or other relatives’ request for a divorce mentioned above, a court
shall permit the divorce if there are grounds to believe that the domestic
violence committed by one spouse seriously harms the life, health or spirit of
the other.
Domestic violence
acts is one of the important factors mentioned in unilateral divorce. Domestic
violence acts and “serious condition, common life no longer impossible and the
marriage purposes unachievable” are defined in Vietnam laws.
For divorce
involving foreign elements, an important condition is permanent residence.
First of all, 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. Two foreigners shall be settled a divorce in Vietnamese
court if both of them reside permanently in Vietnam. 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 could be
applied. However, it is suggested to consult with civil or dispute
lawyers in civil matters in the court proceeding to best protect the rights and
interest especially involving property division and child custody.
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