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CONSULTING LAWYERS ON DIVORCE AND SETTLING THE DIVORCE DISPUTE

  27/07/2020

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  1. Right to request a settlement of divorce

– The wife or husband or both have the right to request a competent court to settle the divorce.

– A parent of a spouse has the right to request a court to settle a divorce if the spouse is incapable of exercising his / her right to request such as: a spouse due to suffering from mental illness or other illness that is not able to perceive, control their own behavior (with the certification of a health facility), and be a victim of domestic violence due to their spouse causing serious impacts on their life, health and spirit and without the intervention of their relatives, they will not be able to file a request themselves.

Note: A husband is not allowed to file for divorce in case his wife is pregnant, gives birth or is nursing a child under 12 months of age. In case of divorce, it must be a favorable divorce.

  1. File a lawsuit/petition

– If the divorce is favorable, you can file it at the People’s Court where the spouse resides.

– If the divorce unilaterally, the petitioner filed the lawsuit at the People’s Court where the defendant currently resides.

– The majority of cases fall under the jurisdiction of a district People’s Court, except for the following cases (under the jurisdiction of the provincial People’s Court): Plaintiff / Defendant or property abroad.

Note: Except for the divorce case between Vietnamese citizens and foreigners who are neighboring countries with Vietnam, the district People’s Courts will still handle them.

  1. Grounds for divorce
    • Favorable divorce

If both husband and wife request for divorce and have agreed on the division of property, common debt and child support, the Court shall approve the divorce; if no agreement is reached or there is an agreement but does not guarantee the legitimate rights of the wife and children, the Court shall handle the divorce.

  • Unilateral divorce

If both wife or husband unilaterally initiates a lawsuit to request a divorce and the conciliation mediation fails, the Court shall settle the divorce if there are grounds to prove that the spouse has committed domestic violence acts or seriously violates the rights and The obligations of the husband and wife make the life together cannot last, the marriage is in a serious situation, the purpose of the marriage is not achieved or in the case of the spouse of the person declared missing by the Court.

  1. Evidence and proving

The application of the provisions on evidence and proving in a divorce case is provided for in the Civil Procedure Code. Specifically:

  • Obligation to prove:
  • The applicant (the applicant for unilateral divorce) must present evidence to prove that his or her request is grounded and legal.
  • The party (the other) who opposes the request of another person to prove that the objection is grounded and must present evidence to prove it.
  1. Settling property of husband and wife upon divorce
    • Principle of division
  • The settlement of property is agreed upon by the parties; in case it is impossible to reach an agreement by itself, it may request the Court to divide;
  • The common property of husband and wife is divided into two halves but taking into account the following factors:
  • The situation of a spouse;
  • Contribution of husband and wife to the creation of common property. Note: The labor of spouse in the family is considered as labor with income, in case the spouse in the housewife is still counted as labor with normal income;
  • Protect the interests of each party if production and business continuity and based on an occupation so that the parties can continue working for income generation;
  • In addition, it is also based on the parties’ faults in violation of the husband’s rights and obligations.
  • The common property of husband and wife can be divided in kind or divided by value; the party accepting the property in kind with a value greater than the enjoyment part has the obligation to pay the difference to the other party.
  • For a private property of a spouse, it cannot be divided but still belong to that person, unless the separate property has been merged into the common property according to the general regulations.

 

  • Division of property in case a husband and wife live with their family
  • If the husband and wife live with the family, if the divorce is able to determine the value of the couple’s assets in the common property of the family, the couple’s assets will be extracted from the block common property to be divided according to regulations.
  • If the husband and wife live with their family, if the divorce does not determine the value of the couple’s assets in the common property of the family, the spouse will be partially divided in the common property block of families based on their contribution to the creation, maintenance and development of that common property.
    • Spouses’ right to stay when divorced

Houses under private ownership of husband and wife put into common use when divorced, they still belong to such persons; In case the spouse has difficulty in accommodation, he/she is entitled to stay for a period of 06 months from the date the marriage relationship terminates unless otherwise agreed by the parties.

  • Dividing the common property of husband and wife put into the business

A spouse who is conducting business activities related to the common property has the right to receive such property and must pay to the other party the value of the property they enjoy.

Divorce is a fairly complicated procedure, affecting the clear rights and interests of the participants. In case readers are not sure about the provisions of the law as well as the implementation process, they should consult a lawyer for the best effect.

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