Judgment No. 14/2018/HNGD-ST dated January 29, 2018 on divorce and child custody dispute

PEOPLE’S COURT OF HAI PHONG CITY

JUDGMENT NO. 14/2018/HNGD-ST DATED JANUARY 29, 2018 ON DIVORCE AND CHILD CUSTODY DISPUTE

On January 29, 2018, the first instance trial court was conducted at the office of People’s Court of Hai Phong province to hear the case No. 181/2017/TLST-HNGD dated December 18, 2017 regarding divorce and child custody dispute according to the Decision to Bring the Case to Trial No.174/2018/QDXXST-HNGD dated January 19, 2018 between the following litigants:

- Petitioner:  Mr. Vu Gia L, born in 1978; registered permanent residence: 55, Alley 67, Street H, Ward C, District LC, Hai Phong City; temporary residence: 343A Marrickville Rd. Marrickville - 2204. NSW, Australia, absent from the court hearing.

- Respondent:  Mrs. Dang Thi Thu T, born in 1984; place of residence: 55, Alley 67, Street H, Ward C, District LC, Hai Phong City, present at the court hearing.

THE CASE

Representation of Mr. Vu Gia L in the petition: He and Mrs. Dang Thi Thu T got married on the voluntary basis and held a wedding ceremony as is indigenous custom, and registered their marriage. While living together, they often come into conflicts due to difference in characters and divergence of opinions in life. From June 2015, he left Vietnam to a foreign country to have his disease treated and has never returned to Vietnam, he and Mrs. Dang Thi Thu T have also live separately since then. Since they have no longer had strings attached with each other and cannot reunite, so, he requests the Court to grant him a divorce from Mrs. Dang Thi Thu T.

With regard to child custody: He and Mrs. Dang Thi Thu T have 2 common children who are Vu Gia H, born on July 28, 2005; Vu Gia K, born on February 27, 2008, he agrees to give 2 common children to Mrs. Dang Thi Thu Thao. With regard to child support, they mutually reach an agreement without requesting the Court to settle.

With reference to distribution of property: He and Mrs. Dang Thi Thu T mutually reach an agreement without requesting the Court to settle.

Representation of Mrs. Dang Thi Thu T in her depositions: She agrees with Mr. Vu Gia L’s depositions concerning their marriage process and reasons for marital discord. Her additional presentation: Since Mr. Vu Gia L has gone abroad, their conflicts have become more serious, due to geographical distance, they cannot sympathize with each other and their marriage feels suffocating.  Deeming that they have no longer had affection, she agrees to the divorce from Mr. Vu Gia L.

With regard to child custody and division of common property: She agrees to the opinion of Mr. Vu Gia L.

Because Mr. Vu Gia L has lived abroad and has not requested reconciliation, the Court does not conduct the reconciliation as prescribed in Clause 2, Clause 4 Article 207 of the Civil Procedure Code.

At the court hearing: Mrs. Dang Thi Thu T still retain her opinions as stated in her testimony.

Opinions of the representative of the People’s Procuracy at the court hearing:

* In terms of court procedures: the Judge, the First Instance Trial Panel, the Court Reporter have complied with regulations on the Civil Procedure Code from the acceptance step to the court hearing. Litigants also fulfill their rights and obligations as prescribed in the Civil Procedure Code.

* With reference to content: According to available documents in the case file, there are substantial grounds to conclude that the marriage life of Mr. Vu Gia L and Mrs. Dang Thi Thu T is not happy due to their divergence of opinions. They have lived separately and no longer taken care of each other. Thus, their discord is seemed serious, the purpose of marriage is not achieved, it is advisable to accept the petition for divorce of Mr. Vu Gia L. With reference to common children, the Court recognizes the child custody agreement reached by them. Mrs. Dang Thi Thu T are awarded custody of both children. The Court does not settle the matter of child support as no request is made by the litigants. The Court also does not settle the matter of common property as no request is made by the litigants. Mr. Vu Gia L has to pay a court fee as per the law.

JUDGEMENT OF THE COURT

Deeming all the documents available in the case file which are litigated at the court hearing, the Court considers that:

[1] With reference to legal relations and jurisdiction: Mr. Vu Gia L and Mrs. Dang Thi Thu T voluntarily got married and had their marriage registered at People’s Committee of Trai Cau Ward, Le Chan District, Hai Phong City on May 18, 2005 as prescribed in Article 9, Article 11 of the Law on Marriage and Family 2000 in Viet Nam, so it is a legal conjugal relationship. Due to the fact that Mr. Vu Gia L has lived abroad, the case falls under jurisdiction of People’s Court of Hai Phong City as prescribed in Clause 3 Article 35, Point a Clause 1 Article 39, Point d Clause 1 Article 469 of the Civil Procedure Code in Viet Nam.

[2] With reference to litigants’ absence: Although Mr. Vu Gia L is absent from the court hearing, he submitted a Request for Trial in Absentia and authorized Mrs. Dang Thi Thu T to receive judicial documents on his behalf. Pursuant to Clause 1 Article 227, Clause 1 Article 228 of the Civil Procedure Code, the Court conduct a trial in the absence of Mr. Vu Gia L.

[3] With reference to conjugal relationship: According to the depositions of the litigants, and statements of families’ representatives, there are substantial grounds to determine that: After getting married, Mr. Vu Gia L and Mrs. Dang Thi Thu T only have stayed in a happy marriage for about 6 years. Then, they have come into conflicts because of disagreements in life. Their conflict has became tenser since 2015 when Mr. Vu Gia L went abroad. Their conflict has been reconciled by their families but unfortunately failed. Because Mr. Vu Gia L has been living abroad, it seems unlikely that they could reunite. They have lived separately for a long time and have no longer sentimentally and financially taken care of each other. Thus, the Mr. Vu Gia L’s petition for divorce is a legitimate expectation.

Considering that Mr. Vu Gia L and Mrs. Dang Thi Thu T have no longer loved each other, each person has only fulfilled their own duties, their marital discord has become serious and the purpose of marriage is not achieved. Therefore, it is necessary to apply Article 51, Article 56 of the Law on Marriage and Family 2014 in Viet Nam to accept the petition for divorce of Mr. Vu Gia L.

[4] With reference to child custody: Mr. Vu Gia L and Mrs. Dang Thi Thu T have 2 common children who are Vu Gia Huy, born on July 28, 2005; Vu Gia Khanh, born on February 27, 2008. They mutually agree to give 2 common children to Mrs. Dang Thi Thu Thao.

Considering that, since Mr. Vu Gia L went abroad, Mrs. Dang Thi Thu T has raised the two children and still ensure the rights and benefits of any aspect for them, thus, their agreement does not contravene the regulations of law and in conformity with two children’s expectations. Pursuant to Article 81, Article 82, Article 83 of the Law on Marriage and Family, the Court accept the child custody agreement of Mr. Vu Gia L and Mrs. Dang Thi Thu T.

With reference to child support: Mr. Vu Gia L and Mrs. Dang Thi Thu T mutually reached an agreement and do not request the Court to settle.

[5] With reference to division of property: Mr. Vu Gia L and Mrs. Dang Thi Thu T mutually reached an agreement and do not request the Court to settle.

[6] With reference to court fee: Because Mr. Vu Gia L is a plaintiff, he must pay the first instance civil court fee as per the law.

[7] With reference to the right to appeal of litigants: Mr. Vu Gia L and Mrs. Dang Thi Thu T have the right to appeal the judgment as per the law.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Articles 51, 56 , 81, 82, 83 of the Law on Marriage and Family 2014;

Pursuant to Clause 3 Article 35; Point a Clause 1 Article 39; Clause 4 Article 147; Clause 4 Article 207; Clause 1 Article 227, Clause 1 Article 228; Article 266; Article 273; Point d Clause 1 Article 469, Clause 2 Article 479 of the Civil Procedure Code 2015;

Pursuant to Point a Clause 5 Article 27 of the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, exemption, reduction, collection, transfer, management and use thereof,

Hereby judges: 

1. With reference to conjugal relationship: Mr. Vu Gia L is granted a divorce from Mrs. Dang Thi Thu T.

2. With regard to child custody: Award the child custody of Vu Gia Huy, born on July 28, 2005; Vu Gia Khanh, born on February 27, 2008 to Mrs. Dang Thi Thu T until they attain the age of majority or otherwise regulated by law.

With reference to child support: Mr. Vu Gia L and Mrs. Dang Thi Thu T mutually reached an agreement and do not request the Court to settle.

3. With reference to distribution of property: Mr. Vu Gia L and Mrs. Dang Thi Thu T mutually reached an agreement and do not request the Court to settle.

4. With reference to court fees: Mr. Vu Gia L has to pay VND 300,000 (Three hundred thousand dong) of first instance divorce court fee, which is deducted from the first instance court fee of VND 300,000 according to the receipt No. 0010556 dated December 15, 2017 of Department of Civil Judgment Enforcement of Hai Phong City. Mr. Vu Gia L paid in full.

5. With reference to the right to appeal of litigants:

Mr. Vu Gia L has the right to appeal the Judgment within 1 month from the date on which a valid judgment is received.

Mrs. Dang Thi Thu T has the right to appeal the Judgment within 15 days from the date of pronouncement.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, 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 amended 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./.