Procedures for divorce with foreigners in 2024

The trend of marrying foreigners is becoming increasingly popular. When conflicts arise in married life, and one party no longer harbors feelings for the other, divorce becomes a consideration. However, when seeking a divorce from a foreign spouse, what documents are required? What does the procedure entail?

The following article “Procedures for divorce with foreigners in 2024” of CIS Law Firm will answer questions about divorce with foreigners.

MỤC LỤC BÀI VIẾT

1. What is a divorce?
2. Who is entitled to request a divorce?
3. Cases that cannot be resolved by divorce
4. Documents to prepare to request a divorce from a foreigner
5. Competence to settle divorce with foreigners
6. What is the procedure for divorce settlement with foreigners in 2024?
7. Property disputes during divorce
8. Dispute over child custody in divorce
9. Disputes over alimony during divorce
10. Frequently asked questions
11. Lawyer consulting on divorce procedures with foreigners of CIS Law Firm

1. What is a divorce?

Divorce is the official way to end a marriage. A court or authorized entity handles this process, which breaks, changes or cancels the legal responsibilities and rights that come with being married.

Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of a court. (Clause 14, Article 3 of the Law on Marriage and Family 2014)

Therefore, it can be understood that, when a court’s divorce judgment or decision has taken effect, the husband and wife relationship will legally end. This means that even though husband and wife are separated, do not live together, do not even contact each other for many years, even tear up the Marriage Registration Certificate, but do not apply to the Court for the decision, judgment on the divorce, the marriage relationship still legally exists.

2. Who is entitled to request a divorce?

Right to request divorce settlement is regulated by Article 51 of the Law on Marriage and Family of Vietnam 2014, as follows:

Article 51. Right to request divorce settlement

1. Wife, husband or both have the right to request the Court to settle the divorce.

2. Parents and other relatives have the right to request the Court to settle a divorce when one of the spouses, due to mental illness or other diseases, cannot perceive and control his/her own behavior. are victims of domestic violence caused by their husbands and wives, seriously affecting their lives, health and spirit.

3. Husband has no right to request divorce in case his wife is pregnant, giving birth or raising a child under 12 months old.

Based on the above provisions, the following people have the right to request divorce:

– Wife/Husband unilaterally requests the Court to settle the divorce;

– Both husband and wife mutually agree to divorce and request the Court to settle;

– Parents and relatives have the right to request the Court to settle the divorce when:

+ Wife/Husband has a mental illness or other illness and is unable to perceive and control behavior.

+ Husband or wife is the victim of domestic violence caused by their husband or wife, which seriously affects their life, health and spirit.

3. Cases that cannot be resolved by divorce

If both husband and wife mutually agree to divorce, the Court will always grant the divorce if they do not change their minds. However, if only the husband or wife requests a divorce and the other does not agree (unilateral divorce), there are specific cases where a divorce cannot be granted:

Firstly, if the wife is pregnant, giving birth or raising a child under 12 months old, the husband does not have the right to request a divorce.

Secondly, there is no basis for the fact that the husband and wife commit acts of domestic violence or seriously violate the rights and obligations of the husband and wife, causing the marriage to fall into a serious situation and the common life cannot be prolonged , the purpose of marriage is not achieved.

Thus, unilateral divorce is not an easily granted request, as it directly affects the marital relationship, property, and has a profound impact on children.

4. Documents to prepare to request a divorce from a foreigner

In order to get a divorce, husband/wife needs to prepare documents to be sent to the Court. A divorce file with a foreigner includes:

– Applications for divorce;

– Marriage registration certificate;

– Personal papers of husband and wife: ID card, Passport;

– Household book of husband and wife; Staying window; Temporary residence card of foreigners in Vietnam;

– Birth certificates of children;

– Papers proving common assets and common debts;

– In case the spouse has gone abroad but the address in the foreign country cannot be determined, a certificate certifying that the spouse has exited from the locality is required.

Note: If both parties register their marriage under foreign law and want to get a divorce in Vietnam, they must have a consular legalization of the marriage registration certificate and complete the procedures for noting it in the register at the Department of Justice before submitting the application of divorce in Court.

5. Competence to settle divorce with foreigners

First, the jurisdiction to settle divorces with foreigners belongs to the Court. Whereby:

– In case of divorce between a Vietnamese citizen residing in the border area and a citizen of a neighboring country residing in the border area with Vietnam, the People’s Court of the District where the Vietnamese citizen resides is competent to settle divorce.

– In cases of divorce with other foreigners, the People’s Court of the Province has jurisdiction to settle the divorce.

6. What is the procedure for divorce settlement with foreigners in 2024?

To settle divorce procedures with foreigners in Vietnam follows these steps:

Step 1: Prepare documents including documents as in Section 4.

Step 2: Submit the divorce file to the competent court as described in Section 5.

Step 3: The court considers and accepts the file

– Within 7-15 days, the Court examines the dossier, if the dossier is complete and valid, the Court will send a notice of advance of the court fee.

– In case the dossier is incomplete, the court will notify the divorce petitioner to amend and supplement the application or dossier.

Step 4: The court conducts the settlement

The court opens a mediation session at the court and conducts divorce proceedings at the Court according to the procedures.

7. Property disputes during divorce

Principles of property division upon divorce for foreigners in particular as well as for Vietnamese citizens in general, the division of property is according to the following principles:

1. When a husband and wife divorce, they have the right to reach agreement among themselves on all issues, including the division of property. In case the husband and wife cannot reach an agreement but request, the Court must consider and decide on the application of the couple’s property regime according to the agreement or the law, depending on the specific cases handled by the Court. as follows:

a) In case there is no written agreement on the property regime of the husband and wife or the written agreement on the property regime of the husband and wife is declared completely invalid by the Court, the husband and wife’s property regime shall apply. according to the law to divide the property of husband and wife upon divorce;

b) In case there is a written agreement on the property regime of husband and wife and this document is not declared completely invalid by the Court, the contents of the written agreement shall apply to divide the property of husband and wife when divorce. For matters that are not mutually agreed upon by the spouses, or which are unclear or invalidated, the respective provisions of the Law on Marriage and Family shall apply to the division of property of husband and wife upon divorce.

2. When resolving divorce, if there is a request to declare that the agreement on the husband and wife’s property regime is invalid, the court shall consider and settle it simultaneously with the request for property division of the husband and wife upon divorce.

3. When dividing the common property of husband and wife upon divorce, the Court must determine whether the spouse has property rights and obligations towards the third party in order to include the third party in the proceedings as a spouse. have related rights and obligations. In case a husband and wife have property rights and obligations towards a third party that they request to settle, the court must settle them when dividing the husband and wife’s common property. Where husband and wife have obligations to a third party but the third party does not request settlement, the court shall guide them to settle another case.

4. In case the statutory property regime of husband and wife is applied to divide the property of husband and wife upon divorce, the common property of the husband and wife is divided in principle, but taking into account the following factors to determine: Determine the proportion of property that the husband and wife are divided:

a) “Family and spouse’s circumstances” is the state of a spouse’s legal capacity, behavioral capacity, health, property, and ability to work and generate income after divorce. as well as that of other family members in which the husband and wife have personal rights and obligations as well as property in accordance with the Law on Marriage and Family. The party facing more difficulties after the divorce is entitled to a larger share of assets than the other party or is given priority to receive the type of property to ensure the maintenance and stability of their life, but must be consistent with the actual circumstances of the spouse. family and husband and wife.

b) “The husband and wife’s contribution to the creation, maintenance and development of the common property” is the contribution of separate property, income, family work and labor of the husband and wife in the family. the creation, maintenance and development of common property. A wife or husband who stays at home to take care of children and family but does not work is counted as an employee with income equivalent to that of a working husband or wife. The party with more effort to contribute will be shared more.

c) “Protecting the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income” is the division of common property of husband and wife that must be guaranteed to the wife, husbands who are currently active in their profession may continue to practice; husband and wife who are engaged in production and business activities may continue to produce and do business to generate income and must pay the other party the difference in property value. The protection of the legitimate interests of each party in production, business and professional activities must not affect the minimum living conditions of spouses and minor children, adult children who have lost their legal capacity to act. civil law.

d) “The fault of each party in violating the rights and obligations of husband and wife” is the fault of the spouses in violation of their personal rights and obligations, resulting in divorce.

5. The value of common property of husband and wife and separate property of husband and wife shall be determined according to the market price at the time of first-instance settlement of the case.

6. When settling property division upon divorce, the Court must consider to protect the lawful rights and interests of the wife, minor children, adult children who have lost their civil act capacity or are incapable of acts. work and have no assets to support themselves

Therefor, the division of property of husband and wife upon divorce is settled as follows:

First, if both of two chooses the agreed property regime before marriage, the division of property upon divorce shall be done according to the established agreement.

Second, if they do not have an agreement on the property regime as agreed upon or the written agreement on the husband and wife’s property regime is completely invalidated by the Court, the statutory property regime shall be applied division of property.

When a couple divorces, their property is generally split in half, but other factors outlined by the law also play a role. If the shared property can be divided into physical items, it will be. If not, it will be divided based on its value. If one person gets more valuable items, they must compensate the other person for the difference.

8. Dispute over child custody in divorce

Child custody rights upon divorce are provided for in Article 81 of the Law on Marriage and Family of Vietnam 2014, specifically as follows:

Article 81. The care, care, upbringing and education of children after divorce

1. After a divorce, parents still have the right and obligation to look after, care for, raise and educate their minor children and adult children who have lost their civil act capacity or are incapable of working, and have no property to support themselves according to the provisions of this Law, the Civil Code and other relevant laws.

2. Husband and wife agree on who directly raises children, obligations and rights of each party after divorce towards children; in case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.

3. Children under 36 months of age shall be assigned to their mothers to directly raise them, unless the mothers are not eligible to directly look after, care for, nurture and educate the children or the parents have other agreements in accordance with their interests. child’s benefit.

Thus, the custody of children after a divorce can be reached by the parents themselves, but if the parents cannot come to an agreement on their own, they can ask the Court to settle. The court will resolve the child custody dispute upon divorce based on the children’s interests in all aspects. If the child is 07 years old or older, the Court will consider his/her wishes. If the child is under 36 months old, it will be delivered directly to the adoptive mother, unless the mother is not economically eligible or has other agreements.

9. Disputes over alimony during divorce

According to the provisions of Clause 2, Article 82 and Article 116 of the Law on Marriage and Family of Vietnam 2014, the child support payment upon divorce is as follows:

Article 82. Obligations and rights of parents who do not directly raise children after divorce

2. Parents who do not directly raise children have the obligation to support their children.

Article 116. Support level

1. The level of support shall be agreed upon by the person with the support obligation and the person receiving the support or his/her guardian, based on the income, actual ability of the person with the support obligation and the essential needs of the person with the support obligation. alimony; If no agreement can be reached, ask the Court to settle.

2. With good reason, the level of support may change. The change of support level shall be agreed upon by the parties; If no agreement can be reached, ask the Court to settle

Thus, the level of support shall be agreed upon by the person with the obligation to support and the person receiving the support or his/her guardian based on the income, actual ability of the person with the support obligation and the essential needs of the person with the support obligation. alimony. If you can’t reach an agreement, ask the Court to settle.

10. Frequently asked questions

♦ Divorce procedures for people living abroad.

– Step 1: Submit a petition for a divorce with foreign elements at the competent provincial/city People’s Court;

– Step 2: After receiving the lawsuit petition and valid documents within about 7-15 days, the Court examines the application and if it is complete, the Court will notify the payment of the court fee advance;

– Step 3: Pay the first-instance civil court cost advance at the competent civil judgment enforcement agency and return the court fee advance receipt to the Court;

– Step 4: The court will convene and carry out the procedures in accordance with the law.

Note:

– In case of divorce in absentia, the period is from 12 to 24 months (due to the procedure for judicial entrustment);

– Judicial entrustment fee from 5 to 7 million VND;

– Documents sent from abroad must have consular legalization and translation.

♦ Procedure for unilateral divorce with foreigners.

– Step 1: Prepare documents and submit them at the competent People’s Courts;

– Step 2: TA handles divorce documents;

– Step 3: Verify the Respondent’s residential address;

– Step 4: TA convenes and conducts procedures as prescribed by law.

♦ Procedures for divorce with foreigners in absentia.

– Step 1: Submit the dossier at the competent People’s Court;