Judgment No. 1335/2017/HNGD-ST dated September 28, 2017 on divorce dispute

PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 1335/2017/HNGD-ST DATED SEPTEMBER 28, 2017 ON DIVORCE DISPUTE  

On September 28, 2017, the first instance trial court was conducted at the office of People’s Court of Ho Chi Minh City to hear the case No. 317/2017/TLST-HNGD dated July 19, 2017 regarding a divorce. Pursuant to the Decision to hear the case No. 650/2017/QDST-HNGD dated August 25, 2017 and Decision to delay the court hearing No. 5013/2017/QDST-HNGD dated September 13, 2017 between litigants below:

- Petitioner:

Mrs. Phan Thi Ngoc M, born in 1979 (with Request for Trial in Absentia)

Permanent residence: P Street, B ward, G district, Ho Chi Minh City. Address: N Street, M ward, G district, Ho Chi Minh City.

- Respondent:

Mr. F, born in 1974 (Absent) Nationality: France

Address: France.

THE CASE OF MRS. PHAN THI NGOC M

Representation of Mrs. Phan Thi Ngoc M made in the lawsuit petition and written testimonies:

Mrs. M and Mr. F voluntarily got married and had a marriage certificate No. 3534, volume 13 dated November 16, 2006 issued by People’s Committee of Ho Chi Minh City dated November 15, 2006. Because of the inharmony between she and her husband, conflicts persist and there is no way to solve the unhappy marriage. She and Mr. F have lived separately for 3 years in two different places. Up to now, they have not had spousal attachment any longer and the purpose of marriage is not achieved, so she filed a petition for divorce from Mr. F.

With reference to common children: She and Mr. F have no common child.

With reference to common property and liabilities: the court is not requested to settle.

Prior to the date on which the People’s Court of Ho Chi Minh City accepted the petition for divorce of Mrs. Phan Thi Ngoc M dated July 19, 2017, Mr. F submitted a Request for Trial in Absentia to the People’s Court of Ho Chi Minh City (certified by the Vietnamese Embassy in France on July 6, 2017), representation of the respondent:  He and Mrs. Phan Thi Ngoc M had lived together from 2006 and had marriage registration according to the marriage certificate No. 3534, volume 13 dated November 16, 2006 issued by the People’s Committee of Ho Chi Minh City on November 15, 2006. He confirmed that they had many conflicts and stayed in an unhappy marriage. He have lived and worked in France for 5 consecutive years and have not taken care of Mrs. M who have lived in Vietnam. Their marriage is irretrievably broken, so Mrs. Phan Thi Ngoc M filed a unilateral petition for divorce from him, he requests the court to hear the case as per the law.  Furthermore, he cannot arrange his work to return to Vietnam, so he requests trial in absentia in all sessions, reconciliation sessions, and court hearing. The respondent did not make any request in respect of common children, property or liabilities.

People’s Court of Ho Chi Minh City served the court papers, informing dates, time and places of reconciliation session and court hearing to the respondent Mr. F through his authorized representative Mr. Nguyen Huu M (according to the Letter of authorization dated July 4, 2017, certified by Vietnamese Embassy in France on July 6, 2017). On the predetermined trial date, People’s Court of Ho Chi Minh City did not receive any testimony or evidence from the respondent and the respondent was absent without a Request for Trial in Absentia. People’s Court of Ho Chi Minh City brings the case to trial according to the general procedure.

JUDGEMENT OF THE COURT

According to the case file and evidence therein and public verification of evidence at the court hearing, the first instance trial panel judges:

[1] In terms of court procedures:

According to the petition filed by the petitioner, the marriage certificate and representations of the litigants, it is well-grounded to determine that this case is a divorce dispute. Mr. F-respondent has lived in France. Pursuant to Clause 1 Article 28, Clause 3 Article 35, Clause 1 Article 37 of the Civil Procedure Code, the jurisdiction of this case falls under People’s Court of Ho Chi Minh City.

Before opening the first instance trial, the petitioner submitted a Request for Trial in Absentia, court papers were duly served to the respondent with notification of dates, time and places but the court did not receive any reply and eventually the respondent was absent. Deeming that, the petitioner’s request and opinions are specified in her testimony; the respondent's representation states his opinions about a part of the case, their absence do not prejudice the case settlement. Pursuant to Clause 1, Clause 2 Article 227; Clause 1, Clause 3 Article 228 of the Civil Procedure Code in Viet Nam, the first instance trial panel decides to try in absence of the petitioner and the respondent.

In this case, the litigants submitted files and evidence related to the case; the respondent has lived abroad and has his authorized representative receive court papers from the court; therefore, People’s Court of Ho Chi Minh City decides not to conduct the judicial assistance and take extra evidence. Pursuant to Clause 2 Article 21 of the Civil Procedure Code, the People’s Procuracy does not join the court hearing.

[2] With reference to content:

According to the testimony of the petitioner, representation of the respondent and the marriage certificate No. 3534, volume 13 dated November 16, 2006 issued by People’s Committee of Ho Chi Minh City on November 15, 2006, it is well-grounded to determine that the marriage between Mrs. Phan Thi Ngoc M and Mr. F was established on a voluntary basis and recognized by law.

According to the representation, their marriage was only happy for a short time. Up to now, Mr. F has lived and worked in France and Mrs. M has lived in Vietnam. They both confirmed that being distant for a long time makes conflicts arise, their feelings gradually fade. Mrs. Phan Thi Ngoc M petitioned for divorce from Mr. F.

Deeming that, they have not lived in a happy marriage so far and the purpose of marriage is not achieved. They both admit that their conflicts are irresolvable. They have lost touch with each other and have not taken care of each other or shared problems in their marriage life. Based on the petitioner’s request, the first instance trial panel considers that it is well-grounded to accept Mrs. M's petition for divorce from Mr. F.

With reference to common children: Mrs. Phan Thi Ngoc M confirms that they have no common child.

With reference to common property and liabilities: the court is not requested to settle.

First instance civil court fee: Mrs. Phan Thi Ngoc M must pay a first instance civil court fee as per the law.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

- Pursuant to Clause 1 Article 28, Clause 3 Article 35, Clause 1 Article 37, Article 147, Article 227, Article 228, Clause 4 Article 447, Clause 2 Article 479 of the Civil Procedure Code in Viet Nam;

- Pursuant to Clause 1 Article 56, Article 121 and Article 127 of the Law on Marriage and Family;

- Apply the Law on Fees and Charges 2015 in Viet Nam; Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of 14^th National Assembly on amount, remission, collection and payment, management and use of court fees and charges;

- Apply Law on Civil Judgment Enforcement in Viet Nam.

I. Accept the request of petitioner – Mrs. Phan Thi Ngoc M:

1. With reference to conjugal relationship: Mrs. Phan Thi Ngoc M is judged to lawfully divorce Mr. F.

The marriage certificate No. 3534, volume 13 dated November 16, 2006 issued by the People’s Committee of Ho Chi Minh City on November 15, 2006 is no longer valid.

2. With reference to common children: No common child is claimed, so the court is not requested to settle.

3. With reference to common property and liabilities: the court is not requested to settle.

II. First instance civil 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. 0047209 dated July 17, 2017 issued by the Civil Enforcement Agency of Ho Chi Minh City. She has already paid it.

III. Right to appeal:

The petitioner has the right to appeal to reconsider the case under appellate trial within 15 days from the date on which he receives the judgment or the judgment is posted; the respondent who has lived abroad and absent from the court hearing may rightfully appeal the judgment within 1 month from the day on which this judgment is duly served or publicly notified as per law provisions.

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.