Judgment No. 35/2017/HNGD-ST dated December 15, 2017 on dispute over divorce and common children

PEOPLE'S COURT OF HAI DUONG PROVINCE

JUDGMENT NO. 35/2017/HNGD-ST DATED DECEMBER 15, 2017 ON DISPUTE OVER DIVORCE AND COMMON CHILDREN

On December 15, 2017, the first-instance trial court was conducted at the office of the People's Court of Hai Duong province to hear the case No. 87/2017/TLST-HNGD dated July 4, 2017 on “Dispute over divorce and common children”. Pursuant to Decision to hear the case No. 45/2017/QDXXST-HNGD dated July 10, 2017, Decision to delay court hearing and Notice to re-open the court hearing between litigants below:

- Petitioner: Mrs. Nguyen Thi V, born in September 20, 1989;

Address: DX, VH, BG, HD;

Having worked in Taiwan;

- Respondent: Mr. Vu Van S, born in February 23, 1988;

Address: ĐX, VH, BG, HD;

Having worked in Singapore;

- Person with relevant rights and obligations: Mrs. Pham Thi H, born in 1962;

Address: ĐX, VH, BG, HD;

THE CASE OF MRS. NGUYEN THI V

- Representation of the petitioner in the petition for divorce and depositions:

With reference to conjugal relationship: The respondent and the petitioner got married in 2008 and had their marriage registered at the People’s Committee of Vinh Hong commune, Binh Giang district. After marriage, they lived at the respondent's family.  Until 2013, due to economical disadvantage, they mutually agreed to work in Taiwan. While living in Taiwan, the couple often had quarrels and difference in views of life.  They had doubt as to love and money affairs of the respondent and had quarrels, both via phones and in person, and even offended each other abroad. The couple lived apart from May 2015 to November 2016 before the respondent moved to Singapore for working, then they only have maintained contact to discuss children issues. The petitioner returned home for a while before working abroad again. On June 19, 2017, the petitioner presented in Vietnam and the respondent also returned home thereafter but they did not live together. The respondent had never come to meet the petitioner. There was only time that he asked her for a family meal but she refused because she and the son were not comfortable with that invitation. She considers that she was no longer having feeling for the respondent. She filed for divorce from the respondent.

With reference to common children, they have a common child named Vu Van Q, born on September 10, 2009; he have lived with grandmother named Pham Thi H. If the court accepts the petition for divorce, regarding common child, she claims sole custody of Q without requiring child maintenance from the respondent, she leaves the child support matter for his decision. Currently, both of them have worked abroad, so she authorizes her mother Mrs. H to take care of Q because he have lived with his grandmother so far.

With reference to property: They do not request the court to settle.

- Representation of the respondent:

With reference to conjugal relationship: The marriage conditions and marriage registration time declared by the petitioner is true. He contests her petition for divorce, they are not likely to lead to a divorce, he wishes that his son still has father and mother and they will reunite. He has never beaten or insulted his wife and son. If the petitioner is determined to divorce, he still contests it and she has the right to seek a unilateral divorce. The petitioner had presented in Vietnam before he returned home in late June, 2017. However, they did not meet with each other. He tried to meet the petitioner several times but failed. Up to now, their marital relationship still does not improve. He deems that he has no way to hold her but he still contests the divorce.

Because of busy work, he requests the trial in absentia; any documents and decisions of the court should be sent to the address DX village, VH commune, BG district in the name of his father named Vu Van S.

With reference to common children, they have a common child named Vu Van Q, born in September 10, 2009. If the court accepts the petition for divorce, he respects Q’s wish. After the petition works abroad, he may changes the request later.

With reference to common property, they do not request the court to settle.

- Representation of person with relevant rights and obligations:

Mrs. H’s daughter has been working in Taiwan, before leaving Vietnam, she made a Request for Trial in Absentia and a Letter of Authorization, having Mrs. H act on behalf of the petitioner to receive all documents from the court and take care of Q. Mrs. H accepts the authorization. Any documents sent by the court and court session are well informed to the petitioner, any petitioner’s opinion is also well-informed to the court.

With reference to common children, before leaving Vietnam, the petitioner has authorized Mrs. H to take care of Q and the respondent has also worked in Taiwan, therefore she requests the court to accept the petitioner's claim for custody of Q who has been given care from her until the petitioner returns to Vietnam.

At the court hearing,

The petitioner is absent with the Request for Trial in Absentia, the respondent is absent although he was summoned two times, Mrs. H is absent with the Request for Trial in Absentia.

The representative of the People’s Procuracy of Hai Duong province at the court hearing verifies the compliance with proceedings of presiding officers and procedural participants as per the law as follows:

- As for the guidelines for the case, the People’s Procuracy requests the trial panel to accept the petition for divorce filed by Mrs. Nguyen Thi V pursuant to Articles 56, 58, 81, 82 of the Law on Marriage and Family and Article 147 of the Civil Procedure Code 2015 and judge the petitioner to lawfully divorce the respondent. With reference to common children, the representative of the People’s Procuracy, after considering real circumstances and laws and regulations, requests the trial panel to award the custody of Q to the petitioner and Mrs. H will take care of Q on behalf of the petitioner until she returns to Vietnam. In addition, the court should accept the voluntary consent of the petitioner not requiring the child maintenance from the respondent.

JUDGEMENT OF THE COURT

According to the evidence and documentation in the case file, representation of litigants and opinions of the representative of the People’s Procuracy of Hai Duong province. The trial panel judges as follows:

- In terms of court procedures: Mrs. Nguyen Thi V filed a petition to People’s Court of Hai Duong province for divorce from Mr. Vu Van S who, at the time of acceptance of case files, has been abroad. It is deemed within jurisdiction of the People’s Court of Hai Duong province as prescribed in Article 28, Clause 3 Article 35 and Article 37 of the Civil Procedure Code.

Because the petitioner and Mrs. H submitted Request for Trial in Absentia and the respondent did not show up despite being duly summoned two times, the court decides to hear the case in the absence of litigants.

- With reference to the content of the case:

+ With reference to conjugal relationship:

The petitioner and the respondent got married on a voluntary basis and had their marriage registered at People’s Committee of VH commune, BG district on October 10, 2008 in accordance with laws and regulations, so it is considered legal. After marriage, they lived together at the respondent’s family in DX village, VH commune, BG district. They lived together happily until 2013 when they started to have doubt as to love and money affairs of the respondent and had quarrels, both via phones and in person, and even offended each other. Until November 2016, the respondent moved to Singapore to work, since then the couple did not take care of each other any longer.

Late June 2017, they both returned to Vietnam but their relationship remained as worse as usual. Despite any convincement, the petitioner is still determined to divorce and the respondent deemed that their marital relationship is irretrievably broken after the conciliation process.

The trial panel has valid grounds to consider that the marriage between the petitioner and the respondent falls into bad situation, the duration of marriage cannot last longer, and the purpose of the marriage is not reached. Therefore, trial panel reach a consensus on accepting the petition for divorce in accordance with Article 51, 56 of the Law on Marriage and Family.

+ With reference to common children:

The couple has one common child named Vu Van Q, born on September 10, 2009 (more than 8 years of age now). Considering each party’s situation, the trial panel deems that: Both petitioner and respondent have worked abroad, Q has been taken care of by the grandmother Mrs. Pham Thi H. The petitioner claims sole custody of Q and authorize Mrs. H to take care of him while she works abroad. The respondent respects any whom Q wishes to stay with.  The court considers Q's wish to stay with his mother. Therefore, the trial panel determines to award the custody of Q to the petitioner and Mrs. H is authorize to take care of him until he attains the age of majority and ensure his children right.

In addition, the court should accept the voluntary consent of the petitioner not requiring the child maintenance from the respondent.

+ With reference to property: No common property is claimed, so the court is not requested to settle.

+ With reference to court fee: The petitioner must pay the first-instance marriage and family court fee.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES:

Pursuant to Articles 51, 56, 81, 82, 83 of the Law on Marriage and Family in Viet Nam; Article 28, Clause 3 Article 35 and Article 37, Clause 4 Article 147 of the Civil Procedure Code in Viet Nam; Resolution No. 326/2016/UBTVQH14 in Viet Nam on court fees and charges. Hereby judges:

- With reference to conjugal relationship: The petitioner is judged to lawfully divorce the respondent.

- With reference to common children: The petitioner is awarded custody of Vu Van Q, born in September 10, 2009 until he attains the age of majority (18 years of age). Because the petitioner has been working abroad, Mrs. Pham Thi H (authorized by the petitioner) will take care of Q. The voluntary consent of the petitioner not requiring child maintenance from the respondent is accepted.

The respondent has the right of access; no one may prevent him from exercising such a right.

- With reference to court fee: The first-instance civil court cost of VND 300,000 shall be legitimately paid by the petitioner; it shall be deducted from the first-instance court cost paid in advance according to the court cost and fee payment receipt No.AA/2016/0001034 dated June 30, 2017 of Department of Civil Judgment Enforcement of Hai Duong province;

The first-instance trial takes place publicly, the petitioner and the respondent may rightfully appeal the judgment within 15 days from the day on which this judgment is served or publicly notified as per law provisions.