Vietnam: Is a verbal divorce agreement considered a legal divorce? Is it allowed to divide common property verbally?
What types of divorce are there under current regulations?
According to the provisions of the 2014 Law on Marriage and Family in Vietnam, there are 02 forms of divorce, which are divorce by mutual consent and divorce at the request of one spouse (unilateral divorce), specifically as follows:
Pursuant to Article 55 of the 2014 Law on Marriage and Family in Vietnam stipulating divorce by mutual consent as follows:
- When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring 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.
Pursuant to Article 56 of the 2014 Law on Marriage and Family in Vietnam stipulating unilateral divorce as follows:
- When a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable.
- When the spouse of a person who is declared missing by a court requests a divorce, the court shall permit the divorce.
- For request for a divorce under Clause 2, Article 51 of this Law, a court shall permit the divorce if it has grounds to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.
Vietnam: Is a verbal divorce agreement considered a legal divorce? Is it allowed to divide common property verbally?
Is a verbal divorce agreement considered a legal divorce?
Pursuant to Article 57 of the 2014 Law on Marriage and Family in Vietnam, the time of termination of marriage is as follows:
Time of termination of marriage and responsibility to send divorce judgments or decisions
1. The marriage relation shall terminate on the date a court’s divorce judgment or decision takes legally effective.
2. The court that has settled a divorce shall send the legally effective divorce judgment or decision to the agency registering such marriage for recording in the civil status register; the divorced partners; and other persons, agencies and organizations as prescribed by the Civil Procedure Code and other relevant laws.
Thus, the marriage relation terminates when and only when a court’s divorce judgment or decision takes legally effective.
Therefore, a verbal divorce agreement does not terminate the marital status of the couple.
Is it allowed to divide common property verbally?
Pursuant to Article 38 of the 2014 Law on Marriage and Family in Vietnam stipulating as follows:
Common property division during the marriage period
1. During the marriage period, except the case prescribed in Article 42 of this Law, husband and wife have the right to reach agreement on division of part or whole of common property. If they fail to reach an agreement, they have the right to request a court to settle it.
2. An agreement on common property division shall be made in writing. This agreement shall be notarized at the request of husband and wife or as prescribed by law.
3. At the request of a spouse, a court shall settle the common property division according to Article 59 of this Law.
An oral divorce agreement does not end the marriage. Therefore, the property of the couple (if there is no separate agreement) is considered as common property during the marriage.
Therefore, the division of common property upon divorce must be made in writing and notarized.
What are the principles of settlement of property of husband and wife upon divorce?
Pursuant to Article 59 of the 2014 Law on Marriage and Family in Vietnam, the settlement of property of husband and wife upon divorce will be carried out according to the following principles:
- The settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. In case the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
- 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.
- Common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner who receives the property in kind with a value bigger than the portion he/she is entitled to receive shall pay the value difference to the other.
- Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property in accordance with this Law.
A spouse who requests division of separate property which 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.
- The lawful rights and interests of the wife, minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves shall be protected.
- The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding this Article.
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