1. Introduction
The Law governs divorce law in Vietnam on Marriage and Family, which outlines specific provisions regarding the rights and obligations of spouses, as well as the procedures and processes for divorce. Particularly for cases involving foreign elements, there are distinct requirements and procedures to follow.
Foreigners seeking a divorce in Vietnam must fully understand the legal regulations to protect their rights. Being well-informed can help avoid legal complications and ensure a smoother divorce process.
2. Legal Requirements for Divorce in Vietnam
Residency Requirement: According to Article 127 of the Law on Marriage and Family, a divorce involving foreign elements in Vietnam requires at least one of the spouses to have a permanent residence in Vietnam.
Grounds for Divorce in Vietnam:
Mutual Consent Divorce: This occurs when both parties agree to divorce and can reach an agreement on all issues related to their marriage, such as asset division, child custody, alimony, etc.
Unilateral Divorce: One party may file for a unilateral divorce if there are grounds such as:
+Domestic violence by one spouse.
+Serious violations of the rights and obligations of the spouses.
+A severe breakdown of the marriage, where the common life cannot continue, and the marriage’s purpose cannot be fulfilled, examples include:
- Lack of spousal affection.
- One spouse engaging in extramarital affairs.
- Insulting each other’s dignity or honour.
- Disrespecting each other’s freedom of belief and religion.
Necessary Documents:
- Application for recognition of mutual consent divorce or petition for divorce.
- Original marriage certificate or a certified copy.
- Notarized copies of ID cards/Citizen ID cards or Passports of both parties.
- Notarized copies of household registration books/temporary residence books/residence permits of both parties.
- Certified copies of children’s birth certificates (if applicable).
- Documents proving common assets and debts (if any).
- Documents proving that one party is abroad (if applicable).
- Other relevant documents.
Note: Documents issued by foreign authorities must be legalized by consular authorities.
3. Divorce Procedure for Foreigners
Step 1: Prepare the Required Documents:
The petitioner must prepare and submit all necessary documents to the court.
Step 2: Submit the Divorce Application Involving Foreign Elements:
The application is submitted to the Provincial People’s Court where the spouses reside or work (for mutual consent divorce) or where the defendant resides or works (for unilateral divorce).
Step 3: Court Processes the Application:
After receiving the application, the court will assess its validity and notify the petitioner to pay the provisional court fees within 5 days.
Step 4: Court Hearing and Decision:
The court will conduct a hearing and issue a divorce decree.
Timeframe for Divorce Resolution:
Mutual Consent Divorce: From 3 to 4 months.
Unilateral Divorce: From 4 to 6 months at the first instance level and 3 to 4 months at the appellate level.
Divorce in the Absence of a Foreign Party: The process may extend up to 24 months.
Jurisdiction Over Divorce Cases Involving Foreign Elements:
Jurisdiction by Nation:
The Vietnamese courts have jurisdiction over divorce cases involving foreign elements where the plaintiff or defendant is a Vietnamese citizen or where the parties are foreigners residing, working, or living long-term in Vietnam, as stipulated in Article 469 of the 2015 Civil Procedure Code.
Jurisdiction by Court Level:
Provincial People’s Courts: According to Clause 3, Article 35, and Article 37 of the 2015 Civil Procedure Code, provincial-level courts handle divorce cases involving foreign elements.
Special Cases: In special cases, as outlined in Clause 4, Article 35 of the 2015 Civil Procedure Code, if the divorce involves a Vietnamese citizen residing in a border area and a neighbouring foreign citizen residing in the same border area, the district-level People’s Court has jurisdiction.
Jurisdiction by Territory:
Mutual Consent Divorce: The court where either spouse resides.
Unilateral Divorce: The court where the defendant resides.
4. Challenges and Considerations
Common Challenges Faced by Foreigners:
- Language Barrier: Foreigners may have difficulty understanding and navigating legal procedures due to a lack of fluency in Vietnamese. This can lead to misunderstandings and delays in the divorce process.
- Complexity of the Legal System: Divorce law in Vietnam has specific provisions for cases involving foreign elements, which can be more complex compared to the legal systems of other countries.
- Difficulty in Proving Residency: To meet the residency requirement, foreigners must provide valid documentation. Gathering and preparing these documents can be challenging, especially for those who do not reside in Vietnam regularly.
Legal and Cultural Considerations:
- Cultural Differences: Divorce is not only a legal process but also involves cultural factors. Foreigners need to understand the values, customs, and cultural regulations in Vietnam to avoid unnecessary conflicts.
- Impact on Legal Rights Abroad: If one spouse is a foreigner, the divorce may affect their legal rights in their home country, including the recognition of the Vietnamese court’s divorce decree.
Impact on Assets and Child Custody:
- Division of Assets: Dividing assets in divorce cases involving foreign elements can be complicated, especially when assets are located in multiple countries. Foreigners should prepare carefully and seek expert advice to protect their rights.
- Child Custody: Child custody is often a sensitive and complex issue in divorce cases involving foreign elements. The Vietnamese court will consider various factors, including living conditions and the child’s development, when deciding on custody.
5. Frequently Asked Questions
a. Can Foreigners Divorce in Vietnam? Yes, foreigners can divorce in Vietnam if they meet the legal requirements, including residency conditions and submitting the necessary documents.
b. Where to Process a Divorce Involving Foreign Elements? Divorce cases involving foreign elements fall under the jurisdiction of the Provincial People’s Court where the defendant resides or works (for unilateral divorce) or where the spouses reside or work (for mutual consent divorce).
c. What is the Divorce Fee for an Absent Foreign Party? According to Resolution 326/2016/UBTVQH14, the divorce fee for an absent foreign party is 300,000 VND if there is no dispute over assets. In case of asset disputes, the court fee is determined based on the value of the assets.
6. Conclusion
Divorce in Vietnam involving foreign elements is a complex process that requires careful preparation and a deep understanding of local laws. Foreigners must ensure they fully comply with the residency, documentation, and legal process requirements to safeguard their rights during the divorce.
Due to the complexity of divorce involving foreign elements, seeking legal advice from experts is crucial. They can help you understand your rights, and obligations, and how to address any issues that arise.
If you are a foreigner considering divorce in Vietnam, contact us to provide you with specific advice tailored to your situation.
Harley Miller Law Firm “HMLF”
Head office: 14th floor, HM Town Building, 412 Nguyen Thi Minh Khai, Ward 05, District 3, Ho Chi Minh City.
Phone number: +84 937215585
Website: hmlf.vn Email: miller@hmlf.vn