Divorce involving foreign elements – disadvantages and notes?22/04/2021 admin
Divorce means termination of a husband and a wife relation under a court’s legally effective judgment or decision. Thereby, divorce allows a binational couple to escape from a legally binding relationship and each of them could be considered as “single”. In Vietnam, solely People’s courts at all levels are competent to settle the divorce in general, and Provincial People’s Courts are responsible for tackling the settlement of divorce involving foreign elements. Except for the case that People’s Courts of Districts shall be in charge of settling divorce petition between Vietnamese citizens living in frontier areas and citizens of neighboring countries living near Vietnam.
According to the provisions of Vietnamese laws, it is understandable that foreign divorce elements is a divorce that (i) between a Vietnamese citizen and a foreigner or overseas Vietnamese; (ii) between two foreigners permanently residing in Vietnam; (iii) partners being Vietnamese citizens do not permanently reside in Vietnam at the time of request for divorce and this divorce shall be settled in accordance with foreign law; (iv) the dissolution of marriage relates to assets in a foreign country. In principle, the right to request a divorce is a personal right attached to each subject, so husband and wife can only do so by themselves but cannot transfer or authorize another.
In this articles, Apolat Legal will clarify the legal issues relating to unilateral divorce between Vietnamese resident and a foreigner or overseas Vietnamese.
As usual, in the divorce case, the territorial Courts are competent to accept for settlement are the Courts, where Defendants reside. However, in case of unilateral divorce with the Defendant being a foreigner or a Vietnamese residing overseas, the Plaintiff (the petitioner to request settlement of the divorce) has the right to choose the court where he/she resides and works to handle. In this case, in fact many people assume that the place where the Plaintiff resides is merely the place of permanent residence. However, according to the Law on Residence, the place of residence includes either a permanent or a temporary place of residence. Therefore, the Plaintiff can choose the Court at which has more favorable conditions for settlement divorce. Not to mention that, a legal temporary residence recognized by a court must satisfy legal procedures, have a temporary residence book or be certified by a competent local authority.
In many cases, although the jurisdiction of the Court has been correctly determined, the Court is still unable to accept and settle the divorce case because besides the address of the Defendant according to the Marriage Certificate, the Plaintiff will not provide any additional information to the Court. For some more difficult courts, it is common not to receive lawsuit dossiers or to receive dossiers but issue requests for amendments or supplements to the lawsuit petitions or to provide additional documents as well as evidence. This will make the divorce procedures lengthy and difficult from the first stages. Therefore, the person having demand divorce in Vietnam must request the Defendant’s assistance in providing a permanent address or current address and documents proving such address as Certificate of Land use rights, household registration book,… However, due to conflicts in married life, Defendant does not always support in providing address or sending documents proving his address to Vietnam to the Plaintiff. In this case, the Plaintiff can file a petition committing the accuracy of the Defendant’s address and mentioning the reasons for not collecting these documents to send to the Court and submit with the original petition for the reception and acceptance the case at the Court is more convenient.
When the case is accepted, in order to promote the settlement of the case, the Plaintiff must request the Defendant to coordinate necessary work in accordance with the law in the Court such as providing self-declarations of his opinion on divorce regarding property, custody, common debt, certificate of residence address and a number of other documents if requested by the Court. If the Plaintiff fails to convince the Defendant to provide the above documents, the Court will have to give judicial assistance to the overseas Vietnamese representative agency where the Defendant resides for assistance such as writing testimonies, transmitting documents, gathering evidence, verifying addresses. Judicial assistance is crucial and decisive to the settlement results of a divorce case. However, at present, the judicial assistance still has many difficulties and problems. According to the regulation of the law, the Plaintiff is responsible for expenses incurred for the overseas judicial assistance and must pay expense advance to the Court before the Court proceeds this procedure. In addition, the judicial assistance will face a number of obstacles for countries claiming to oppose another country to serving the document, for example Hungary declaring opposition to another country delivering the document in accordance with the Article 10 (a) of the Convention of Transmittance Paper. In addition, even if the judicial assistance is successful and supported by overseas agencies, the resolution of the case will also take a long time due to many administrative procedures, geographical obstacles and lead to a high cost. Moreover, the prolonged case is considered a violation of the procedures and may be appealed or protested by the litigants or competent authorities. From the above difficulties, the Plaintiff should proactively contact, work and urge the Defendant to support the divorce to resolve quickly, save time, costs for the parties.
Please note that all documents sent to Vietnam from abroad must be consular legalization at the diplomatic representative of Vietnam located in the Defendant’s residing country. When sent to Vietnam, these documents must be translated and submitted to the Court together with the above-mentioned consular legalization dossiers. At that time, the dossiers sent from abroad will be considered legal, valid and recognized by the Court.
Some problems in divorce involving foreign elements, especially divorce between a Vietnamese citizen and a foreigner, and overseas Vietnamese are mentioned herein, contributing to information provision, mention some notes and solutions for the issue for readers. If you need assistance from Apolat Legal, don’t hesitate to let us know.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.