Vietnam’s increasing international integration has led to a rise in marriages between Vietnamese citizens and foreigners. Consequently, understanding the divorce procedures for international couples has become increasingly important. This comprehensive guide will walk you through the entire process of obtaining a divorce in Vietnam as a foreigner.
Legal Requirements for Foreign Divorce in Vietnam
Foreigners must meet eligibility criteria and understand jurisdictional considerations before filing for divorce in Vietnam. The divorce follows the Law on Marriage and Family, the Civil Procedure Code, and Resolution 326/2016/UBTVQH14.
Eligibility Criteria
- At least one spouse must reside in Vietnam (the application for a trial in absentia of the person living abroad is required).
- Marriage must be legally recognized under Vietnamese law.
- All documentation must be properly authenticated and translated.
To understand the criteria and documents to ensure that international marriage is legally recognized, please refer to this article: Marriage Laws for Foreigners in Vietnam: A Comprehensive Guide
Jurisdiction Considerations
Vietnamese courts can handle divorce cases when (Article 127 Law on Marriage and Family):
Both spouses live in Vietnam:
Divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency following the Law on Marriage and Family.
Both spouses do not have a place of permanent co-residence in Vietnam:
In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled following the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.
The assets in dispute are located in Vietnam:
The settlement of a divorced couple’s immovables in a foreign country must comply with the law of the country where such immovables are located.
2 cases for a divorce:
Divorce by mutual consent (Article 55 Law on Marriage and Family)
Both spouses request a divorce.
The court shall recognize the divorce by mutual consent if seeing that the two are willing to divorce and have agreed upon:
- Property division.
- Looking after, raising, caring for, and educating their children.
These agreements must be based on the legitimate interests of the wife and children.
If the spouses fail to reach agreement or have reached an agreement which -fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.
Divorce at the request of one spouse (Article 56 Law on Marriage and Family)
A spouse requests a divorce.
The spouses must have a conciliation at a court first.
If the conciliation fails, the court shall permit the divorce if it has grounds to believe that a spouse:
- Commits domestic violence.
- Commits seriously infringe upon the rights and obligations of the husband or wife.
- Has a mental illness or other illness is unable to perceive and control behavior and is currently a victim of domestic violence, which severely impacts the life, health, or well-being.
A husband has no right to request a divorce when his wife is pregnant, gives birth, or is nursing an under-12-month child (Article 51.3 Law on Marriage and Family).
Step-by-Step Divorce Process
1. Jurisdiction of courts:
The divorce process begins with filing a petition at the provincial-level People’s Court, where:
Divorce by mutual consent:
The provincial-level People’s Court where either spouse maintains residence shall have the jurisdiction to settle the voluntary divorce (Article 29, 37.1.b, 39.2.h Civil Procedure Code.
Divorce at the request of one spouse:
People’s Courts of provinces shall have the jurisdiction to settle the divorce (Article 28, 37.1.a Civil Procedure Code). The territorial jurisdiction of Courts to settle civil lawsuits shall be determined based on each case listed in Article 39.1 Civil Procedure Code.
2. Required Documentation
Essential documents include:
- Submission of divorce petition in Vietnamese (mutual consent divorce: the petition for the recognition be signed by both spouses/unilateral divorce: a divorce lawsuit petition must be prepared)
- Original marriage certificate. If the marriage certificate is lost, a certified copy issued by the competent state authority must be submitted, and the details must be stated in the lawsuit petition
- Valid identification documents: Passport/ID
- Residence documentation: Household book/Temporary residence card of foreigners in Vietnam
- 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.
- Property ownership papers and common debt papers (if applicable)
- Child-related documents (if applicable)
- Evidence proving the agreement on divorce, child custody, and division of joint property between the spouses is valid and legal (if divorce by mutual consent)
- Evidence supporting divorce grounds (if divorce is requested by one spouse)
3. Legal Rights and Property Division
Vietnamese law provides specific provisions regarding (Article 59 Law on Marriage and Family):
- Equal division of jointly owned property:
In case of applying the statutory matrimonial property regime, the settlement of property shall be agreed upon by the concerned parties. In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement.
If both spouses fail to reach an agreement or their prior agreement is insufficient or unclear, their property shall be divided equally according to the law.
- Protection of individual property rights:
Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property following the Law on Mariage and Family.
A spouse who requests division of separate property that has been merged into or mixed with common property shall be paid for the value of his/her property contributed to common property, unless otherwise agreed by husband and wife.
- Consideration of contributions to family assets:
Common property shall be divided into two, taking into account the following factors:
- Circumstances of the family, husband and wife;
- Each spouse’s contributions to the creation, maintenance, and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;
- Protecting the legitimate interests of each spouse in their production, business, and career activities to create conditions for them to continue working to generate incomes;
- Each spouse’s faults in the infringement of spousal rights and obligations.
4. Child Custody Arrangements
The court prioritizes children’s best interests when determining (Article 81, 82 Law on Marriage and Family):
Primary custody rights:
Parents still have the duty to care for and raise minor children or adult children who cannot support themselves.
Parents must agree on who will raise the children and their respective rights and duties. If no agreement is reached, the court will decide based on the children’s best interests.
If a child is full 7 years or older, his/her desire shall be considered.
A child under 36 months of age shall be directly raised by the mother unless the mother is unable to care for and raise the child, or unless otherwise agreed by the parents for the child’s best interests.
Visitation schedules:
- The non-custodial parent has the right to visit and care for the child without obstruction.
- The parent who directly raises a child has the right to request a court to restrict the right of the other parent who does not directly raise this child if the latter takes advantage of his/her visit to and care for the child to obstruct or adversely affect the looking after, care for, raising and education of this child.
Child support obligations
Parents not raising the child after divorce must provide child support, regardless of the custodial parent’s financial capability, unless the custodial parent voluntarily waives support and can fully support the child.
The support level shall be agreed upon by the person with the support obligation and the supported person based on the actual income and ability of the person with the support obligation and the essential needs of the supported person. When there is a plausible reason, the support level may change. The change of the support level shall be agreed upon by the parties. (Article 116 Law on Marriage and Family)
If they fail to reach an agreement, they may request a court to settle it.
Costs and Timeline
The divorce process typically involves:
- Court fees (Resolution 326/2016/UBTVQH14): 300,000 VND in cases where there is no disputed property between the parties. If there is disputed property, the court fees are determined based on the total value of the disputed assets between the parties, according to the levels specified in the List of Court Fees and Charges.
- Legal representation: Varies based on complexity
- Translation services: Required for foreign documents
- Timeline: Approximately 03 to 04 months for an uncontested divorce, and 04 to 06 months for a contested divorce starting from the date the court accepts the petition. Maybe longer for disputed matters.
This procedure includes (Articles 190-196, 210, 212, 220 and 266 Civil Procedure Code):
- Step 1: Prepare the divorce documents
- Step 2: Submit the divorce documents to the competent court
- Step 3: Modify and supplement the divorce documents as required by the court (if any)
- Step 4: Pay the court fee deposit and receive notification of the acceptance of the civil case
- Step 5: Participate in mediation at the court
- Step 6: Receive the decision to recognize the uncontested divorce
In case of divorce at the request of one spouse, if the agreement is not reached:
- Step 7: The court will proceed with opening a trial to adjudicate the divorce case according to the general procedure
- Step 8: The court issues the first-instance judgment to resolve the contested divorce case.
Special Considerations
International Recognition
To ensure international recognition of the divorce:
- Obtain certified copies of the divorce decree
Foreign authorities and institutions may require a certified copy to verify that the divorce was legally granted. This document serves as proof that the divorce took place and is legally valid in the country where it was issued.
After the divorce is finalized in Vietnam, you can request certified copies of the divorce decree from the court that handled your case.
- Have documents properly authenticated
Foreign authorities, such as embassies, consulates, or courts, may not automatically recognize a Vietnamese divorce decree unless it has been authenticated. Without this step, foreign countries may consider the decree invalid or insufficient.
In Vietnam, after getting the certified copy, you may need to visit the Ministry of Foreign Affairs or a relevant local authority to have it authenticated for international use.
- Register the divorce in your home country
Registering the divorce in your home country ensures that the divorce is officially recognized by local authorities. This may be important for legal matters such as remarriage, inheritance, or child custody in your home country.
Additionally, these are some considerations for international recognition:
- Bilateral or Multilateral Treaties: Some countries have agreements with Vietnam regarding the recognition of divorces. If such a treaty exists, the divorce may be automatically recognized without additional steps.
- Residency or Jurisdiction: Some countries require that one or both parties be residents or nationals of the country where the divorce is taking place for the divorce to be recognized.
- Compliance with Local Laws: Even if the divorce was legally granted in Vietnam, the foreign country may require it to meet certain legal standards (e.g., in cases of contested divorce, certain residency requirements, or proof of due process).
Common Challenges
Be prepared for potential obstacles such as:
Language barriers in legal proceedings
The legal proceedings in Vietnam are conducted in Vietnamese, and all documents need to be submitted in the local language. If the foreigner does not speak Vietnamese, this can create a communication barrier during the divorce process.
Solution: Hire a qualified translator or a lawyer who is fluent in both Vietnamese and your native language to help navigate the proceedings and assist with document translation.
Complex documentation requirements
Divorce documentation must be in Vietnamese, with supporting documents (e.g., marriage certificates, ID proof, property documents) translated and authenticated.
Solution: Hire a translator to ensure that all documents are properly translated, and make sure they are notarized and legalized as needed. Also, be prepared to provide additional supporting documents that may be required by the court.
Cultural differences in legal approaches
Vietnam’s legal system and cultural norms around divorce may be different from those in a foreigner’s home country. For example, Vietnam recognizes both contested and uncontested divorces, but the grounds for divorce and the approach to the division of property or child custody may differ significantly.
Solution: It’s essential to understand Vietnam’s divorce laws, including the criteria for divorce (e.g., “irreconcilable differences” or fault-based grounds), property division, and child custody rules. Consulting with a Vietnamese lawyer who specializes in family law is highly recommended.
Cross-border enforcement issues
Even if a divorce is granted in Vietnam, it may not be automatically recognized in your home country. Some countries require additional steps, like registering it locally or providing extra documentation.
Solution: Before divorcing in Vietnam, consult a legal expert in your home country to ensure recognition. You may need to obtain an apostille or legalize the divorce decree.
Conclusion
While navigating divorce procedures in Vietnam as a foreigner can be complex, understanding the process and requirements helps ensure a smoother experience. It’s highly recommended to seek professional legal assistance to guide you through the specific requirements of your case and ensure compliance with all legal obligations.
For the latest information and advice, consult a qualified legal professional specializing in international divorce in Vietnam.
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