Judgement no. 187/2019/HNGD-ST on non-recognition of a relationship as a marriage

THE PEOPLE’S COURT OF HAI PHONG CITY

JUDGEMENT NO. 187/2019/HNGD-ST DATED NOVEMBER 4, 2019 ON NON-RECOGNITION OF A RELATIONSHIP AS A MARRIAGE

On November 4, 2019, at the headquarters, the People's Court of Hai Phong city opens a first-instance trial for hearing the case No. 212/2019/TLST-HNGD dated September 30, 2019 on divorce dispute under the Decision to bring the case to trial No. 4302/2019/QDXXST-HNGD dated October 18, 2019 and the Decision to adjourn the trial No. 4370/2019/QDST-DS dated October 25, 2019 between the involved parties:

- Petitioner: Mr. Nguyen Huy H, residence:  No. X, ward H, district C, Hai Phong city; not appearing in court.

- Respondent: Ms. Nguyen Thi Hai H, residence: Deutschland (Germany); not appearing in court.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition for divorce and the voluntary statement, the petitioner, Mr. Nguyen Huy H, presented: Mr. and Ms. Nguyen Thi Hai H got married on a voluntary basis on November 21, 2017 in Denmark. After getting married, they lived together in Germany.  In the process of living together until January 2019, conflicts arose since they had different views and had signs of incompatibilities. He has returned to Vietnam since then.  Deeming that their marital bond broke and their marriage purpose was not achieved, he asked the Court to grant him a divorce from Ms. Nguyen Thi Hai H. Regarding child custody and common property:  He and Ms. Nguyen Thi Hai H neither have a common child nor common property, so they did not ask the Court to settle it. After being granted a marriage certificate by the Danish competent authority, they have not had their marriage validated at the competent authority of Vietnam.

In the voluntary statement, the respondent, Ms. Nguyen Thi Hai H, presented:  Agreeing with Mr. Nguyen Huy H's statement about their marriage process, marriage conflicts, common children, common property and she also proposed the court to grant her a divorce from Mr. Nguyen Huy H. Ms. Nguyen Thi Hai H proposed trial in her absence and authorized her relatives to receive the Court's papers for her.

At the court hearing: Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H both did not appear in court, with written requests for trial in absentia.

JUDGEMENT OF THE COURT

Weighing all the documents available in the case file, it was found that:

[1] Regarding jurisdiction to resolve the case: MS, Nguyen Thi Hai H has resided abroad, according to the provisions of Clause 3, Article 35, Point c, Clause 1, Article 40, Point d, Clause 1, Article 469 of the Civil Procedure Code, the case falls under the jurisdiction of the People's Court of Hai Phong city.

[2] Regarding the absence of litigants: Ms. Nguyen Thi Hai H has lived abroad, the documents she sent were all certified by the Embassy of the Socialist Republic of Vietnam in the Federal Republic of Germany.  Ms. Nguyen Thi Hai H authorized her relatives in the country to receive the court's papers for her. Her authorized person received the Decision to bring the case to trial. Nguyen Thi Hai H filed an application for trial in her absence.  Mr. Nguyen Huy H has duly received the Decision to bring the case to trial validly but in his absence, He filed a request for trial in his absence. Pursuant to Clause 1, Article 227, Clause 1, Article 228, Article 238 of the Civil Procedure Code, the People's Court of Hai Phong city shall conduct trial in absentia for the involved parties.

[3] Regarding legal relationship:  Mr. Nguyen Huy Hoang and Ms. Nguyen Thi Hai H got married on a voluntary basis, with a marriage certificate issued by a foreign competent authority on April 26, 2018. However, their marriage has not been validated at the competent authority of Vietnam.  According to Article 35 of Decree 123/2015/ND-CP dated November 15, 2015 of the Government on elaboration of the Law on Civil Status and Article 36 of Decree 126/2014/ND-CP on December 31, 2014 of the Government on elaboration of the Law on Marriage and Family, the marriage between Ms. Nguyen Thi Hai H and Mr. Nguyen Huy H is not legally recognized by Vietnamese law. Currently, both Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H have determined that their shared life is not happy, and have agreed to apply for a divorce, so based on Article 9 of the Law on Marriage and Family 2014, Clause 3 Article 3 Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016 on guidelines for the Law on Marriage and Family, they apply for non-recognition of the relationship between Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H as a marriage.

[4] With reference to common children and property: Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H do not have a common child or common property, so they did not ask the Court to settle it. Therefore, the Trial Panel would not consider it

[5] Regarding first instance civil court fee: As the petitioner, Mr. Nguyen Huy H has to pay the first-instance divorce fee as per the law.

[6] Regarding the right of appeal of the involved parties:  Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H have a right to appeal the judgment as per the law.

For the foregoing reasons,

DISPOSITION

Pursuant to Article 37, Point b Clause 1 Article 39, Point c Clause 1 Article 40, Clause 4 Article 147, Clause 4 Article 207, Clause 1 Article 227, Clause 1 Article 228, Article 238, Article 266, Article 273, Point d Clause 1, Article 469, Article 479 of the Civil Procedure Code;

Pursuant to Article 9 of the Law on Marriage and Family 2014;

Pursuant to Article 35 of Decree 123/2015/ND-CP dated November 15, 2015 of the Government on elaboration of the Law on Civil Status;

Pursuant to Article 36 of Decree 126/2014/ND-CP dated December 31, 2014 of the Government on elaboration of the Law on Marriage and Family;

Pursuant to Clause 3, Article 3 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016 on elaboration of the Law on Marriage and Family;

Pursuant to point a clause 5 Article 27 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof.

Declare:

1. Regarding marriage:  Do not recognize the relationship between Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H as a marriage.

2. With reference to common children and property: Mr. Nguyen Huy H and Ms. Nguyen Thi Hai H agreed that they do not have a common child or common property, so they did not ask the Court to settle it. Therefore, the Trial Panel does not consider it

3. First instance civil fee: Mr. Nguyen Huy H must bear 300,000 VND (three hundred thousand dong) for the first-instance divorce court fee.  But it is deducted from the court fee advance of 300,000 VND that has been paid, according to receipt No. 0008391 dated September 27, 2019 at the Department of Civil Judgment Enforcement of Hai Phong city. Mr. Nguyen Huy H has paid in full.

4. With reference to the right to appeal:

Mr. Nguyen Huy H has the right to appeal the judgment within 15 (fifteen) days from the date of receipt of the judgment or the judgment is publicly posted as prescribed by law.

Ms. Nguyen Thi Hai H has the right to appeal the judgment within 1 month from the date of receipt of the judgment or the judgment is publicly posted as prescribed by law.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments