(Un)Conscious Un-Coupling

Honey, we need to talk…

Dear Antoine, A Vietnamese friend married an Australian in 2014 and the former is now filing for divorce, citing irreconcilable differences. He now resides in Australia while she is in her native Vietnam. She already has a divorce application, her ID and family book—there are no divisions of assets or children—are there any other documents that we need to effectively file for divorce?

According to Vietnamese law, there are two kinds of divorce: a divorce by mutual consent or a divorce by single request. Both have to be approved or pronounced by a court so consider the ground for each before filing. The former implies that both spouses agree to the divorce, while the single request covers cases where only one of the spouses is willing to divorce—with this procedure the court will pronounce the divorce only in cases of infringements of the spouse’s rights and obligations, meaning the couple can no longer live together and marriage purposes are unachievable. Such infringements are usually understood as, for instance, separation, unreasonable behavior or adultery.

Because your friend is Vietnamese and her husband is a foreigner, the legal proceeding is a little bit different than ones between locals. However, the provincial people’s court where your friend resides or works has jurisdiction to settle the case, even if she married abroad.

When there is no division of assets nor issues about child custody, the spouses might prefer the mutual consent procedure because it is easier and quicker than the single request one. However, if your friend’s husband is unwilling to divorce, or if he does not want to cooperate, your friend will need to follow the single request procedure.

For both procedures, the preliminary step is to gather all the documents required for the application. In the mutual consent procedure, both spouses’ signatures are required while an application for single request only needs the signature of the spouse that makes the request. In both procedures, the dossier must contain, besides her ID card and family book, the original marriage registration certificate and other documents such as title documents for assets (if any) or those proving ownership of cars or bank accounts. A copy of her husband’s passport or other form of identity is also needed. Keep in mind that the court may require submission of papers that belong to the husband and that may not be available to your friend for that reason.

The procedure for delivering documents raises a notable matter— clarification of the husband’s details. Let’s take his current address as an example of required information for proceeding purposes, as the court will send him different documents, such as the notification of the opening of the divorce procedure. Your friend may provide to the court authentic evidence proving her spouse’s address, but if she is not able to provide any such evidence, she can ask the court to request it from foreign competent authorities.

Another frequent issue at this first step is certified translation and legalization procedure for documents issued by foreign public authorities. If the marriage certificate was issued by a foreign authority it must be first legalized and then submitted for record in the Civil Status Book at the local provincial Department of Justice before any divorce request can be made.

When this preliminary step is done, she may file a petition in front of the court for recognition of mutual consent divorce or, in case of lack of mutual consent, she must file a single request. A judge is assigned to decide whether a court can hear her case. If yes, she’ll receive a notice on acceptance of case within 10 working days starting from the day of submission. Then a “court session,” in which three judges will rule on her case, will be set up within 12 months. In case of single request, evidence to prove her spouse’s breach of rights and obligations will be requested by the court.

Before any court session, your friend should be aware that mediation is compulsory for each divorce request. This mediation meeting is first held by local authorities and then by the provincial court. However, as her personal circumstance could fall into a specific exception to the mediation procedure—when the involved parties cannot take part in the mediation for plausible reasons—the meeting could not be held. Each spouse is supposed to attend the court session in person. For both mutual consent and single request procedure, in case of absence, it is possible for your friend’s husband to submit to the court a petition for conducting the hearing in his absence.

The last issue that we would like to highlight is the outcome and follow-up of this court session. For the mutual consent procedure, the court session aims to recognize—or not—the agreement concluded by the spouses about the divorce settlement. Recognition of such agreement by the court may not be appealed. The single request procedure is, strictly speaking, a judicial proceeding: at the end of the court session, judges issue a judgment that cannot be appealed.

Divorce procedure in Vietnam, particularly when it involves foreign parties living abroad, may be long and complicated. We hope this summary will help your friend through it.

BIO: A member of the Paris Bar, Antoine Logeay has been practicing law first in France, mainly in litigation and arbitration, then in Vietnam for three years as an associate of Audier & Partners based at its Hanoi office. Audier & Partners is an international law firm with presence in Vietnam, Myanmar and Mongolia, providing advice to foreign investors on a broad range of legal issues.

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