HOW IS MUTUAL CONSENT DIVORCE WITH FOREIGN ELEMENTS REGULATED?

When married life (conjugal life) becomes serious and fails to achieve the common goals of marriage, divorce is the last option. Specifically, If one of the two parties is a foreigner and owns property abroad, it will seem like a divorce with foreign elements. Therefore, What is the applicable Law for the procedures and processes for a mutual consent divorce with a person staying abroad? Along with NPlaw, let's understand mutual consent divorce with foreign elements through the following essay.

What is a mutual consent divorce with foreign elements?

Mutual consent divorce is the termination of married life upon wife and husband’s requirements that are agreed upon relating to wife and husband’s relationship issues, child custody, alimentary, and property division (or agreement for separating the wife and husband’s requirement of property division into another issue after divorce).

Divorce with foreign factors is divorce between a Vietnamese citizen and a foreign person, or between foreigners with permanent residence in Vietnam, that is resolved at the competent agency of Vietnam according to the Law on Marriage and Family 2014.

Mutual consent divorce with foreign elements is when wife and husband have full conditions on divorce with foreign elements listed and volunteer to sign a divorce application; or have agreed on assets, children, and other related issues, then wife and husband can implement the procedures for divorce. 

The procedures for mutual consent divorce with foreign elements

Application

An application for mutual consent divorce with foreign elements includes the following documents:

• The Petition for recognizing mutual consent divorce, the right of child custody, and the division of assets after divorce (according to sample);
• The Marriage Certificate (original); If marriage registration has been implemented abroad, the client needs to implement the procedure for recording marriage according to the Law;
• Personal documents of wife and husband: ID Card, Passport (copy having authentication);
• The Household Book or the Temporary Resident Card of wife and husband; the Temporary Resident Card of wife and husband (copy having authentication);
• The Birth Certificate of children (copy having authentication - if any);
• Documents demonstrate the general assets (if any);
• Petition for absence (if suitors are absent).

The processes for implementing divorce

Step 1: Preparing for the divorce application 

Applications for mutual consent divorce with foreign elements shall be prepared according to the above list. The documents of the divorce application need to implement consular legalization if it is granted by the foreign agency.

Step 2: Filing the application for mutual consent divorce with foreign elements

 Filing the application at the competent Court by Post, submission direct to the Court, or an authorized Lawyer to resolve.

Step 3: The Court accepts and resolves the requirement for the mutual consent divorce

After receiving an application, the Court shall consider the jurisdiction as well as the validity of the divorce application. If the application is valid, the Court shall notify the requester of advance court fee or court fee. After a party requiring divorce completes the fee, the Court shall legitimately accept and resolve such divorce as defined by the Law.

If suitors don’t have time to implement the divorce procedures, they can authorize lawyers to pay the fee to the Court; and implement the procedures for resolving the mutual consent divorce with foreign elements. Furthermore, the authority must be authenticated according to the Law.

Step 4: Opening a meeting to resolve the requirement of recognizing the mutual consent divorce 

The arbitration procedure at the Court when implementing divorce in Vietnam is compulsory. However, if one or two parties are absent, the Court shall not organize arbitration.

Step 5: The Court decides on recognition for the mutual consent divorce

A decision on recognition for the mutual consent divorce will have validity as soon as promulgation. The wife and husband cannot appeal such a decision to the Court.

The jurisdiction over resolving the mutual consent divorce

Pursuant to Article 469 and Article 470 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015), the jurisdiction over resolving mutual consent divorce with foreign elements belongs to the Provincial People’s Court.

Specifically, according to Clause 4, Article 35 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015), if divorce is between a Vietnamese citizen settling in the border area and a neighbouring citizen settling in the border area with Vietnam, the competence shall belong to the District People’s Court.

Therefore, if the wife and husband have permanent residence abroad, the divorce shall be resolved according to the Law of the host country.

The questions arise when implementing mutual consent divorce with foreign elements

Can there be mutual consent divorce when one party is staying abroad?

For mutual consent divorce by the Court, wife and husband still must volunteer to sign the divorce application; and once they have agreed on assets, children, and other related issues, they can implement the divorce procedures. 

 Therefore, the Court will consider mutual consent divorce, if it has all three of the following elements: 

• The wife and husband volunteer and sign the divorce application together;
• The wife and husband have agreed on the right of child custody and the level of alimony; such an agreement must guarantee either party and the children’s benefit;
• The wife and husband have agreed on the division of assets; or have never agreed to such division but do not require the Court to resolve assets. If the wife and husband have agreed on the asset issues and desire the Court to recognize them, the wife and husband can write such a request in the divorce application for recognition.

When registering marriage abroad such as in Japan, whether such a person can go back to Vietnam to require the Court to resolve the mutual consent divorce or not.

Pursuant to Article 469 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015), the following civil cases with foreign elements belong to the jurisdiction of the Vietnam Court:

• The defendant is an individual settling, working, and living long term in Vietnam;
• The defendant is an agency or organization with a headquarter in Vietnam, or an agency or organization with branches and a representative office in Vietnam whose issues relate to the activities of such the agency or organization’s branches and representative office in Vietnam;
• The defendant has assets in the territory of Vietnam;
• The legal issue that the plaintiff or defendant is a Vietnamese citizen or the suitors are foreigners settling, working, or living long term in Vietnam;
• The legal issues relating to civil relationships are that establishment, change, or termination of such relationships occurs in Vietnam, and such relationships’ subject is assets in Vietnam’s territory, or such relationships are implemented in Vietnam’s territory;

• The legal issues relating to civil relationships are that establishment, change, or termination of such relationships occurs beyond Vietnam, but they relate to the rights and obligations of Vietnamese individuals, organizations, and agencies. 

Therefore, if a person registers marriage in Japan and is a Vietnamese citizen with the cases listed, such a person can require the Vietnam Court to resolve such a marriage.

How does the Court resolve the mutual consent divorce?

The Court will resolve the request for mutual consent divorce after receiving an application; complete consideration of the jurisdiction and validity of the divorce application. When the application is valid, the Court shall notify the requesters of advance court fee or court fee.  After a party requiring divorce completes the fee, the Court shall legitimately accept and resolve the divorce as defined by the Law.

How long until the mutual consent divorce is resolved?

The time for resolving the divorce with foreign elements is from one (1) month to three (3) months from the date of acceptance. However, in some cases, the time for resolving mutual consent divorce can be longer because it relates to judicial entrustment; or documents abroad that need consular legalization and translation. 

These are all information relating to the mutual consent divorce with foreign elements as prescribed by Vietnamese Law. Please don’t hesitate to contact us, if the clients have any further questions.

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