Judgment No. 175/2019/HNGĐ-ST dated october 18, 2019 on divorce dispute

PEOPLE'S COURT OF HAI PHONG CITY

JUDGMENT NO. 175/2019/HNGĐ-ST DATED OCTOBER 18, 2019 ON DIVORCE DISPUTE  

On October 18, 2019, at the headquarters, the People's Court of Hai Phong city opens a first-instance trial for hearing the case No. 219/2018/TLST-HNGD dated December 6, 2018 on divorce dispute under the Decision to bring the case to trial No. 3479/2019/QDXXST-HNGD dated August 23, 2019 and the Decision to adjourn the trial No. 3904/2019/QDST-HNGD dated September 20, 2019 between the involved parties:

- Plaintiff:  Mrs. Doan Thi Tr, born in 1987; place of residence: A, Ward A2, District A3, Hai Phong City; appearing in the court..

- Respondent: Mr. Nhan Phuoc Kh, born in 1974; place of residence: B, Canada; not appearing in the court.

THE CASE

Representation of the plaintiff, Mrs. Doan Thi Tr, in the petition for divorce and voluntary statement: In 2008, she got acquainted with Mr. Nhan Phuoc Kh via social network. After a period of courtship, Mr. Nhan Phuoc Kh and she decided to get married..  Nhan Phuoc Kh and she got married voluntarily, registered their marriage at the Department of Justice of Hai Phong City on January 22, 2009. After getting married, Mr. Nhan Phuoc Kh lived with her for 1 month at her parent’s house.  After that, Nhan Phuoc Kh returned to Canada to complete paperwork to sponsor the her to reunite.  She was called for an interview by the Embassy of Canada in Vietnam, but her application was denied because they did not trust her marriage with Nhan Phuoc Kh. Since Nhan Phuoc Kh returned to Canada, at first, she and Nhan Phuoc Kh were still in regular contact by phone and via social networks.  However, after her petition was denied, Nhan Phuoc Kh ceased to complete the paperwork for sponsorship and since then, Mr. Khai has not returned to Vietnam again. Since 2010, Mr. Nhan Phuoc Kh has totally broken off a connection with her.  Now, she has determined that she no longer has strings attached with Mr. Nhan Phuoc Kh, the possibility of reunification is not available, so she filed a petition with the People's Court of Hai Phong city to grant her divorce with Mr. Nhan Phuoc in order for her to build a new life.

With reference to common children and property: Nhan Phuoc Kh and she do not have a common child and have no common property, so they do not ask the Court to settle it.

Mr. Nhan Phuoc Kh has resided at 7648 Alpine Dr, Niagara Falls, Ontario L2H 3B7, Canada. The People's Court of Hai Phong city proposed the Ministry of Justice to make a judicial assistance to the Ministry of the Attorney General of Ontario, Canada to serve the Notice of Acceptance of the Case, Notice of Time of Settlement of the Case and take the testimony of Nhan Phuoc Kh but could not serve (reason: There was no recipient at that address). The People's Court of Hai Phong city announced the acceptance of the case and the time to settle the case on the Court's web portal and the web portal of the representative agency of the Socialist Republic of Vietnam in Canada in accordance with the law, but up to now, the People's Court of Hai Phong city has not received any documents from Mr. Nhan Phuoc Kh.

At today's trial, Mrs. Doan Thi Tr does not provide the new address of Nhan Phuoc Kh in foreign country as well as the name and address of a relative of Mr. Nhan Phuoc Kh in Vietnam

Opinion of the representative of the People's Procuracy of Hai Phong city in the court hearing:

- Regarding proceedings: During the settlement of the case and at the first instance court, the Judge, the Trial Panel, and the Court Clerk have complied with the provisions of the Civil Procedure Code. The plaintiff has complied and properly performed the rights and obligations of the involved parties as provided for in the Civil Procedure Code.

- Point of view to resolve the case:  In this case, the People's Court of Hai Phong city received a written notice from the Ministry of Justice that the Ministry of the Attorney General of the Court of Ontario, Canada has served the court papers to Nhan Phuoc Kh but failed because there was no recipient at the determined address.  At the trial, the plaintiff could not provide a new address of Mr. Nhan Phuoc Kh in foreign country as well as name and address of any relative of Mr. Nhan Phuoc Kh in Vietnam, so request the Trial Panel to apply Point b, Clause 6, Article 477 of the Civil Procedure Code to suspend the resolution of the case.

After reviewing the documents available in the case file, as well as the involved parties' statements and opinions of the Procuracy at the trial,

JUDGEMENT OF THE COURT

[1] Regarding legal relation and jurisdiction: Mrs. Doan Thi Tr and Mr. Nhan Phuoc Kh got married on a voluntary basis, the People's Committee of Hai Phong city issued with them a Marriage Certificate on January 22 2009. According to Article 9 and Article 11 of the 2000 Law on Marriage and Family in Viet Nam, this is a legal marriage.  Mr. Nhan Phuoc Kh 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 in Viet Nam, the case falls under the jurisdiction of the People's Court of Hai Phong city.

[2] Mr. Nhan Phuoc Kh is the defendant, has Vietnamese nationality and place of residence in Canada.  According to the address provided by Mrs. Doan Thi Tr as well as the address that Mr. Nhan Phuoc Kh declared in the Marriage Certificate, the People's Court of Hai Phong city has asked the Ministry of Justice to make a judicial assistance to the Ministry of Attorney General of Court of Ontario, Canada to serve Notice of Acceptance of the Case, Notice of Settlement of the Case and request Mr. Nhan Phuoc Kh to respond to the divorce petition of Mrs. Doan Thi Tr.  On May 23, 2019, the People's Court of Hai Phong city received Official Letter No. 1409/BTP-PLQT dated May 16, 2019 of the Ministry of Justice stating that the Ministry of Attorney General of the Court of Ontario, Canada failed to serve the court papers on Mr. Nhan Phuoc Kh because there was no recipient at the requested address. At today's trial, Mrs. Doan Thi Tr does not provide the new address of Nhan Phuoc Kh in foreign country as well as the name and address of a relative of Mr. Nhan Phuoc Kh in Vietnam. So, the Court has no justifiable ground to identify a new address of Mr. Nhan Phuoc Kh in Canada. Therefore, the Trial Panel shall, based on Point b, Clause 6, Article 477 of the Civil Procedure Code, suspend the resolution of the case. Mrs. Doan Thi Tr has the right to request the Court to issue a notice to find Nhan Phuoc Kh at his place of residence or request the Court to declare that Mr. Nhan Phuoc Kh is missing or dead.

[3] Regarding first-instance civil court fee and overseas judicial assistance costs:  Mrs. Doan Thi Tr, the plaintiff, has to bear first-instance civil court fee and overseas judicial assistance costs as per the law.

Because of the above reasons,,

DISPOSITION

Pursuant to Clause 1 Article 28, Clause 3 Article 35, Point a Clause 1 Article 37, Point c Clause 1 Article 40, Article 146, Clause 4 Article 147, Clause 3 Article 153, Point d Clause 1 Article 469, Clause 2 Article 207 , Point b, Clause 6, Article 477, Article 479 of the Civil Procedure Code;

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

Hereby judge:

1. Suspend of the resolution of the marriage and family case No. 219/2018/TLST-HNGD dated December 6, 2018 by the People's Court of Hai Phong city on the divorce dispute between Doan Thi Tr, plaintiff, and Nhan Phuoc Kh, respondent.

2. Mrs. Doan Thi Tr has the right to file a lawsuit again.  With reference to court fees: Mrs. Doan Thi Tr has to bear 300,000 VND (Three million dong) of first-instance civil court fee.  But it is deducted from the court fee advance of 300,000 VND that has been paid, according to receipt No. 0010937 dated December 6, 2018 at the Department of Civil Judgment Enforcement of Hai Phong city. So, Mrs. Doan Thi Tr has fully paid first-instance civil court fee.

3. Regarding judicial assistance cost: Mrs. Doan Thi Tr has to bear 200,000 VND (Two million dong and 01 traveler's check worth 100 Canadian dollars) for the cost of judicial assistance abroad.  But it is deducted from the advance of judicial assistance abroad of 200,000 VND that has been paid, according to receipt No. 0016111 dated January 3, 2019 at the Department of Civil Judgment Enforcement of Hai Phong city and 01 traveler’s check worth 100 Canadian dollars which has been paid to the beneficiary, the Minister of Finance of Ontario.  So, Mrs. Doan Thi Tr has fully paid the cost of judicial assistance abroad.

4. With reference to the right to appeal:

- Mrs. Doan Thi Tr is entitled to appeal this judgment within 15 days from the date of pronouncement.

- Mr. Nhan Phuoc Kh is entitled to appeal this judgment within 01 month from the date on which the judgment is received or posted up./