THE PROCEDURE OF MUTUAL CONSENT DIVORCE INVOLVING FOREIGN ELEMENTS
I. Requests for consultancy
Question: DTD Law Firm let me ask: I am Vietnamese, my husband is Gernan. We have registered for marriage at the Vietnamese Embassy in Thailand, but we have not recorded it in Vietnam. I am currently in Vietnam and my husband is in Thailand. We both have a desire to divorce, so how is the divorce procedure? If my husband is absent, can this procedure be carried out?
Answer: Hello, Thank you for your trust and for submitting your questions to the Legal Advisory Board of DTD. The content of your question has been studied and consulted by our lawyers as follows:
II. Legal grounds
1. Civil Procedure Code No. 92/2015/QH13 enacted on 25 November 2015 by the National Assembly of the Socialist Republic of Vietnam (“Civil Procedure Code 2015”);
2. Law on Marriage and Family No. 52/2014/QH13 enacted on 26 June 2014 by the National Assembly of the Socialist Republic of Vietnam (“Law on Marriage and Family 2014”);
3. Law on Residence No. 81/2006/QH11 enacted on 29 November 2006 by the National Assembly of the Socialist Republic of Vietnam (“Law on Residence 2006”);
4. Law on Civil Status No. 60/2014/QH13 enacted on 20/11/2014 by the National Assembly of the Socialist Republic of Vietnam (“Law on Civil Status 2014”);
5. Decree on Consular Certification and Legalization No. 111/2011/ND-CP enacted on 5 December 2011 by The Government (“Decree 111/2011/ND-CP”).
III. CONSULTANCY CONTENT
(1) According to the information provided, you and your husband have registered your marriage certification at the Vietnamese Embassy in Singapore.
Pursuant to Clause 3, Article 7 of the Law on Civil Status 2014:
"Article 7. Authority to register civil status
3. Representatives register civil status matters prescribed in Article 3 of this Law for Vietnamese citizens residing abroad."
Accordingly, Vietnamese Embassy in foreign countries has the authority to issue marriage registration certificates to Vietnamese citizens living in that country. Therefore, when returning to Vietnam, the marriage certificate is still valid and does not need to do the procedure of marriage note in Vietnam.
(2) As stipulated in Clause 2, Article 2 of Decree 111/2011 / ND-CP:
"2. "Consular legalization" means the certification by a Vietnamese competent authority of a foreign seal, signature, title on papers or documents to be recognized and used at Vietnam."
Since you and your husband registered your marriage certification at the Vietnamese Embassy in a foreign country and your husband is a foreigner, this shall be considered as a marriage involving foreign elements according to Clause 25, Article 3 of Law on Marriage and Family 2014. If the marriage registration certificates want to be recognized and used in Vietnam, consular legalization procedures must be conducted. Accordingly, you can apply for a divorce in Vietnam Court
(3) Since this is a marriage involving foreign elements, the competent authority will be the People’s Courts of provinces at your place of residence in accordance with Clause 1 Article 28, Clause 3 Article 35, Point a Item 1 Article 37 and Point a, Point b Clause 1 Article 39 of the Civil Procedure Code 2015
Here, the place of residence is understood as " The place of residence of a citizen means a lawful domicile where such person regularly lives. The place of residence of a citizen may be a place of permanent residence or a place of temporary residence.”(Clause 1, Article 12 of the Law on Residence 2006)
(4) If your husband is unable to participate in trial in Vietnam, he shall apply for an application to request the Courts to conduct the trial in his absence pursuant to Article 228 of the Civil Procedure Code 2015 as follows:
"The Courts shall proceed with the case adjudication in the following circumstances:
1. The plaintiff, the defendant or the persons with related interests and duties and their representatives are absent from Court sessions but such plaintiff/defendant/person with related interests and duties files an application to request the Courts to conduct the trial in their absence;
2. The plaintiff, the defendant or the persons with related interests and obligations, who are absent from Court sessions, have their lawful representatives to attend the Court sessions;
3. The cases prescribed in points b, c, d and dd clause 2 Article 227 of this Code."
Thus, if your husband makes an application to request the Courts to conduct the trial in his absence, the Court will continue to resolve the divorce even if your husband is absent.
(5) Procedure and dossiers
Step 1: Wife and husband prepare divorce papers
• A divorce agreement signed by both parties
• Certificate of Marriage Registration (Original).
• Wife and husband’s ID card or passport (Notarized copy)
• Birth certificate of the child(ren) (Notarized copy)
• Document and evidence regarding properties (if any)
• An application for a trial of absence.
Step 2: Submitting the dossier to the Court
Husband and wife submit necessary and related papers at the provincial-level People's Court where you resides
Step 3: Pay the fee and accept the case
Within 7-15 days, if considering the valid and proper dossier, the Court shall process the application and notify the litigant to pay the advance of court fee, from the date of receipt of the petition and documents attached. The time limit for payment of this fee is 05 working days from the date of receiving the notice.
The request is processed when the requester submits a fee receipt to the Court.
The cost of divorce according to the law is 300,000 VND. If you are involved in asset division, you will have to pay an additional charge corresponding to the asset ratio
Within 03 working days from the date of acceptance of the petition, the Court shall notify in writing the requester, people who have interests and obligations related to the settlement of the request for recognition of the divorce agreement, the Procuracy of the same level on the acceptance of the case.
Step 4: The Court proceeds to consider the petition, opening a public meeting to reconcile and resolving the request for recognition of the divorce agreement.
The time limit is 01 month from the date of acceptance. During this preparation, the Court must issue a decision to open the meeting resolution within 15 days from the date of the decision.
Step 5: The Court issues a decision to recognize the divorce agreement
Marriage relations shall terminate from the date when the decision to recognize the divorce agreement is legally effective.
Note: At the trial stage, your husband may make an application for trial in absentia to be absent from the trial. However, at the mediation stage, your husband must be presented at the trial.
