Divorce is the last option when married life (conjugal life) becomes serious and fails to achieve the common goals of marriage. If one of the two parties is a foreigner and owns property abroad, it will be put in the category of divorce with foreign elements. Therefore, What is the applicable Law for the procedures and processes for unilateral divorce with a person staying abroad? Along with NPlaw, let's understand this issue through the following essay.
The regulation on unilateral divorce with a person staying abroad
The Vietnam Law stipulates some regulations relating to unilateral divorce with a person staying abroad:
The subject that is required to implement unilateral divorce
Unilateral divorce or divorce at the request of one party, is when one of two parties requires the implementation of divorce. Pursuant to Article 51 of the Law on Marriage and Family 2014, the subject that is required to implement unilateral divorce, as follows:
- Either the wife or husband, or both, are entitled to require the Court to resolve the divorce.
- Parents or other relatives of the parties (husband or wife) are entitled to require the Court to resolve the divorce if the husband or wife has mental illness or other illness that prevents awareness or control over their own behavior, and simultaneously they are also victims of domestic violence caused by their husband or wife that significantly affects their life, health, and spirit.
According to Clause 2 of this Article: The husband is not entitled to require the Court to implement divorce if the wife is pregnant, has given birth, or is raising children under twelve (12) months of age.
On the other hand, when making a requirement for the divorce, it needs a basis to demonstrate that married life (conjugal life) became serious and failed to achieve the common goals of marriage, as follows:
- One of the two parties has domestic violence behavior;
- The wife or husband significantly breached their rights and obligations (love, loyalty, respect, care, help, and living together, except as otherwise agreed)
Legal basis: Article 56 of the Law on Marriage and Family 2014.
Therefore, the wife, the husband, or other relatives can require the Court to implement the unilateral divorce (if this request satisfies the conditions regulated by the Law)
In the case of absence when implementing unilateral divorce
The wife or husband will often be absent at Court when the other party implements the unilateral divorce. To resolve this issue, therefore, the Court still continues to resolve the unilateral divorce when:
- The wife or husband of a party requiring divorce has petition for the Court to try in absence;
- The wife or husband is absent, but their representative participates in the Court;
- The wife or husband is absent because of Force Majeure or Objective Obstacles.
The competence for resolving unilateral divorce with a person staying abroad
Pursuant to Article 28, 29, 35, 36, 37, and 40 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015), the competence for resolving unilateral divorce with a foreign element, as follows:
- If defendant has residence (permanent residence or temporary residence) in Vietnam, the Provincial or City People’s Court, where the defendant resides or works, will have the competence to handle and resolve;
- If don’t know the defendant’s residence or work, the Provincial People’s Court, where the defendant last resides or works, or has assets, will have the competence to handle and resolve;
- If the defendant doesn't have residence (permanent residence or temporary residence) in Vietnam, the Provincial or City People’s Court, where the defendant resides or works, will have the competence to handle and resolve it.
The procedures for unilateral divorce with a person staying abroad
Filing a petition for the divorce can be done directly at the Court or the Post. The petition includes:
- Petition for divorce (according to sample)
- Marriage Certificate (original)
- Household Book, ID Card (copy having authentication)
- Birth Certificate of children (copy having authentication - if any)
- Other documents, and evidence demonstrating the general asset, such as: Certificate of Land Use Rights, Vehicle Registration, etc,. (copy having authentication)
- Some of the other documents.
When the husband is staying abroad, is the wife allowed to have a unilateral divorce ?
According to the information listed, it can be concluded that the wife still has the right to require the Court to implement unilateral divorce when the husband is staying abroad. However, the unilateral divorce with a foreign element will often be more difficult when the husband is staying domestic. The procedure for such a case is absolutely complicated, so it is necessary to choose a professional lawyer to consult and resolve the problem.
Some questions arise when implementing unilateral divorce with a person staying abroad.
When the wife doesn’t know the husband’s residence abroad, how will the procedure for unilateral divorce be implemented ?
When the wife doesn’t clearly know the residence address or work of the husband staying abroad, the wife can file a petition at the Provincial or City People’s Court, where the wife resides or works, to handle and resolve this issue.
What does a party need to implement if the person staying abroad refuses to provide the address of residence?
When implementing the divorce, if the husband is staying abroad, the wife staying in the country can file a petition at the Provincial People’s Court according to Article 37 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015).
Pursuant to Official Dispatch (Documentary) No. 253 of the Supreme People’s Court, the wife can know the husband’s address and information through the husband’s relative if she doesn’t know the husband’s abroad address. In case, the husband’s relative still refuses to provide such information after two (2) requests by the Court, the Court will try the case in the husband’s absence according to the general procedure.
Which Court has jurisdiction over divorce for the person staying abroad?
Pursuant to Clause 2 of Article 29, Clause 3 of Article 35, and Clause 1 of Article 37 of the Code of Civil Procedure 2015 (Civil Procedure Code 2015), The competence for resolving divorce with a foreign element belongs to the Provincial People’s Court, where the wife and/or the husband reside in Vietnam before going abroad to handle and resolve this issue.
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