Judgment No. 28/2019/HNGD-ST dated june 21, 2019 on divorce, child custody dispute, and property division

PEOPLE'S COURT OF BAC GIANG PROVINCE

JUDGMENT NO. 28/2019/HNGD-ST DATED JUNE 21, 2019 ON DIVORCE, CHILD CUSTODY DISPUTE, AND PROPERTY DIVISION

On June 21, 2019, at the headquarters of the People's Court of Bac Giang province, a first instance trial is conducted to hear the civil case No. 46/2018/TLST-HNGD dated August 24, 2018 on "Divorce, child custody dispute and property division”.  under the Decision to Bring the Case to Trial No. 23/2019/QDXX-ST dated May 6, 2019 and the Decision to Adjourn the Trial No. 17/2019/QD-ST dated May 24, 2019 between the following litigants:

*Petitioner: Mrs. Nguyen Thi Minh T, born in 1990.

Address: Village N, Commune C, District L, Bac Giang Province.  (with request for trial in absentia).

*Representative of Mrs. Nguyen Thi Minh T to receive court papers: Mrs. Nguyen Thi T1, born in 1962.

Address: Team 1, Village N, Commune C, District L, Bac Giang Province.

*Respondent: Mr. Hsu Minh- F, born in 1977.

Address: 5th Floor, No. 2/2, 12 V Street, Area T, City D, Taiwan.

(Mr. Hsu Minh- F requests for trial in absentia)

FACTUAL AND PROCEDURAL BACKGROUND

*Representation of Mrs. Nguyen Thi Minh T in the lawsuit petition and voluntary statement dated June 27, 2018:

- Regarding conjugal relationship: Mr. Hsu Minh-F and I got married on January 20, 2014 at the Department of Justice of Bac Giang province.  After getting married, I applied for emigrating to Taiwan to work and live with Mr. Hsu Minh-F. However, through the employment interview in Hanoi, I was not qualified to work in Taiwan.  Since I was not allowed to go to Taiwan, Hsu Minh-F-hyung left for Taiwan.  Thereafter, he has gone back to Vietnam a few times. In 4 years since we got married, we were often geographically apart, our marital bond has also become more distant, for about a year we have no contact with each other anymore, Hsu Minh-F has returned Vietnam but he did not care about me and our newborn baby, we have been separated for nearly a year so far.  Hsu Minh-F and I has no longer had strings attached with each other, we cannot continue to live together, the marriage is broken, the purpose of the marriage is not reached and the divorce is needed to enable us to create our own new life.  As we have not had spousal attachment any longer, I hereby propose People’s Court of Bac Giang Province grant me a divorce from Mr. Hsu Minh-F.

- With reference to common children: During the marriage period, Hsu Minh-F and I have a newborn son, born on June 22, 2018, at Bac Giang Obstetrics Hospital.  Currently, the child has not registered his birth yet because of problems with birth registration procedures since we could not agree to choose his nationality. Because the newborn child needs mother to take care of, I propose the Court to award me the child custody and require Mr. Hsu Minh-F to pay child support according to the law from the effective date of the Court’s judgment or decision until the child turns 18.

- With reference to common property: During the marriage period, I bought the land plot No. 558, map sheet No. 8. The address of the land plot: Hamlet M 2, Commune H, District V, Bac Giang Province, the area of ​​95.6 square meters, is the land in rural area with long-term use, with the Certificate of land use right issued by the Department of Natural Resources and Environment of Bac Giang No. CD 152521 dated April 27, 2016 to Ms. Nguyen Thi Minh T, born in 1990, ID card number 121921 ***.  Permanent residence: Village N, Commune C, District L, Bac Giang Province.  The value of land use rights is about VND 150,000,000.  Although the above property was formed during the marriage period, but I bought it with money borrowed from my mother to buy, Mr. Hsu Minh-F did not know this and did not contribute anything to the creation of this property.  Request the Court to consider and determine the land parcel is my private property so that I exercise the rights of the property owner and reject the right to the property of Mr. Hsu Minh-F.

- With reference to common debt: Mr. Hsu Minh-F and I do not have any common debt, so we do not request settlement.

- In the minutes dated February 22, 2019, Ms. T changed the presentation concerning the common child as follows:

+ According to the petition, Hsu Minh-F and I have a son, born at Bac Giang Obstetrics Hospital.  Because the newborn child needs mother to take care of, I propose the Court to award me the child custody and require Mr. Hsu Minh-F to pay child support according to the law from the effective date of the Court’s judgment or decision until the child turns 18. But now I would like to present as follows:  My son was born on June 22, 2018, temporarily named Nguyen Hai M. M is not common child between me and Hsu Minh-F, he is my step-child.  In another accident, I got pregnant and gave birth to M. So I withdrew my request to ask Mr. Hsu Minh-F to support according to the law since the court's judgment or decision took effect until he turns 18, as in the petition I presented.  I asked the Court to grant me the child custody, and I will not ask Mr. Hsu Minh-F to provide child support.

+ Due to busy work, I cannot participate in the sessions to take testimony, appraise, valuate property, access to evidence public and mediation, court sessions.  I request for absence from all sessions of testimony, assessments, valuations, public access to evidence and mediation, court proceedings.  I sustain the point I have stated and add nothing father.  Request the Court to resolve it according to the provisions of law.

+ Mrs. Nguyen Thi Minh T also authorizes her mother, Mrs. Nguyen Thi T1 - Born in 1962. Address: Team 1, Village N, Commune C, District L, Bac Giang province to receive court papers and inform the content of the documents to Mrs. T immediately.

* The respondent is Mr. Hsu Minh-F with an address in Taiwan, the People's Court of Bac Giang province issued the Letter Rogatory No. 32/UTTPDS-TA5 dated August 31, 2018 to the Ministry of Justice about the service of court papers and taking of testimonies from the involved parties in accordance with the law (request documentation No. 33/UTTPDS-TA5 dated August 31, 2018). The Official Dispatch No. 207/BTP -PLQT dated January 24, 2019 of the Ministry of Justice sent to the People's Court of Bac Giang province reads as follows:  “The Ministry of Justice received Response to Letter Rogatory No. 1080050079 dated January 9, 2019 of the Ministry of Justice of Taiwan at the request in the Official Dispatch No. 33/UTTPDS-TA5 dated August 31, 2018 for the litigant Hsu Minh-F with an address in Taiwan;  under which, the competent authority of Taiwan has executed the above request for judicial assistance on December 21, 2018 by sending the request for judicial assistance at the police station. The Ministry of Justice would like to send the aforementioned documents and accompanying documents for settlement according to their competence”.

In the process of the Court's resolution of the case, the respondent, Mr. Hsu Minh-F, has a document expressing his views on the lawsuit petition of Mrs. Nguyen Thi Minh T as follows:

Mr. Hsu Minh-F and Mrs. Nguyen Thi Minh T got into a courtship and got married in Vietnam. However, Mrs. Nguyen Thi Minh T cannot get approval to get married in Taiwan.  Mr. Hsu Minh-F and Mrs. Trang got married for about 5 years, but he cannot remember specific date.

Regarding conjugal relationship: Mr. Hsu Minh-F and Mrs. Nguyen Thi Minh T have voluntarily got married, now their strings attached no longer exist, he agrees to divorce Mrs. Nguyen Thi Minh T.

With reference to common children: Mr. Hsu Minh-F asserts that he and Mrs. Nguyen Thi Minh T do not have a common child.

Regarding common assets, common liabilities:  Mr. Hsu Minh-F asserts that he and Mrs. Nguyen Thi Minh T do not have any common assets or liabilities.

Mr. Hsu Minh-F requested to be absent from the mediation and the trial and did not provide any additional documents or evidence.

* At the trial, Mrs. Nguyen Thi Minh T filed a request for trial in absentia, Mr. Hsu Minh-F was duly summoned but also filed a request for trial in absentia.  The Trial Panel (hereinafter referred to as the Panel) announces the petition; Nguyen Thi Minh T's voluntary statement, and summary of the case's content and documents in the case file.

*Representative of the People's Procuracy of Bac Giang Province states:

- Regarding the observance of the civil procedure law:  The Judges, Clerk and the Panel have complied with the provisions of law; on the side of the litigants, Mrs. Nguyen Thi Minh T and Mr. Hsu Minh-F also have complied with the law.

- Factual and procedural background: Considering the marital conflict is serious, the duration of marriage cannot last longer, the purpose of the marriage cannot be reached, the procurator requests the Panel to award Nguyen Thi Minh T a divorce from Mr. Hsu Minh - F; regarding the common child:  Mrs. Nguyen Thi Minh T and Mr. Hsu Minh-F do not have a common child, grant Nguyen Hai M (temporary name), born on June 22, 2018, to T to take care of and nurture; turn down Mrs. Nguyen Thi Minh T's petition for child support from Mr. Hsu Ming-F; regarding common property:  Determination of land use rights of 95.6m2 of rural residential land, long-term use term at land plot No. 558, map sheet No. 8, address:  Village M 2, Commune H, District V, Bac Giang Province, with the Land Use Right Certificate No. CD 152521 dated April 27, 2016 issued by Department of Natural Resources and Environment of Bac Giang to Mrs. Nguyen Thi Minh T, born in 1990, identity card No. 121921***. Permanent address: Village N, Commune C, District L, Bac Giang Province, the private property of Mrs. Nguyen Thi Minh T.  Regarding common debt: Mrs. Nguyen Thi Minh T, Mr. Hsu Minh-F determined that they have no common debt, it should not be considered further. Regarding the cost of proceedings:  Mrs. Nguyen Thi Minh T must bear the cost of proceedings as per the law.

JUDGEMENT OF THE COURT

After taking account of all documents and evidences available in the case file. After discussion and deliberation.  The Panel hereby judges as follows:

[1] Regarding legal relation and jurisdiction: Mrs. Nguyen Thi Minh T is a citizen with residence address in Village N, Commune C, District L, Bac Giang Province, Vietnam.  Currently, Mrs. Nguyen Thi Minh T has a petition for divorce from Mr. Hsu Minh- F. Hsu Minh- F is the respondent currently living and working in Taiwan, with address: Floor 5, No. 2/2, 12 V street, Zone T, City D, Taiwan.  In addition to the divorce request, Ms. T also requested to settle dispute over child custody and property.  Thus, the Court has determined that this is a "divorce, child custody dispute, property division" case with the involved party being a foreigner, residing in a foreign country and the case falls under the jurisdiction of the People's Court of Bac Giang Province according to the provisions of Clause 1, Article 28; Clause 3, Article 35; Point c, Clause 1, Article 37 of Civil Procedure Code 2015 in Viet Nam; Article 123, Article 127 of Law on Marriage and Family 2014 in Viet Nam.

[2]. Regarding the litigant not appearing in court:  The Court issued court papers and notified the involved parties of the time to hear the case.  Mrs. Nguyen Thi Minh T filed a request for trial in absentia, Mr. Hsu Minh-F was duly summoned but also filed a request for trial in absentia. The involved parties expressed their views to resolve the case, their absence does not affect the trial process.  Therefore, pursuant to Clause 1, Article 227; Clause 1, Article 228; Article 238; Point b, Clause 5, Article 477 of the Civil Procedure Code 2015, the Court decides to try the case in the absence of Mrs. Nguyen Thi Minh T and Mr. Hsu Minh- F.

[3]. Regarding conjugal relationship: Mrs. Nguyen Thi Minh T and Mr. Hsu Minh-F got married on the basis of having the freedom to have courtship and register their marriage at the Department of Justice of Bac Giang province. On January 20, 2014, the People's Committee of Bac Giang province, Vietnam certified the marriage between Mrs. Nguyen Thi Minh T and Mr. Hsu Minh- F. Therefore, the Panel determines the marriage relationship of Mrs. Nguyen Thi Minh T and Hsu Ming-F is legal.  After her marriage, Ms. T applied for emigration to work in Taiwan and live with her husband.  However, through the labor interview in Hanoi, Mrs. Nguyen Thi Minh T was not qualified to work in Taiwan.  Because Mrs. Nguyen Thi Minh T did not get approval to go to Taiwan, Mr. Hsu Ming-F returned home.  Thereafter, he has gone back to Vietnam a few times. In the four years since the marriage, Mrs. Nguyen Thi Minh T and Mr. Hsu Ming-F have often lived apart, due to geographical distance, their emotional bond became more distant. In the last 1 year, the couple no longer contacted each other, Hsu Minh-F returned to Taiwan and no longer cared about Mrs. Nguyen Thi Minh T and her newborn child, the couple has been separated for nearly a year.  The Panel finds that the marital conflict between Mrs. Nguyen Thi Minh T and Mr. Hsu Ming-F was serious, the duration of marriage cannot last longer, the purpose of marriage is not achieved.  Therefore, pursuant to Clause 1, Article 51; Clause 1, Article 53; Clause 1, Article 56 of Law on Marriage and Family 2014, the Panel grants a divorce to Mrs. Nguyen Thi Minh T and Mr. Hsu Ming-F.

4]. Regarding common child:

[4.1. During the marriage period, on June 22, 2018, Mrs. Nguyen Thi Minh T gave birth to a son, temporarily named Nguyen Hai M. According to the provisions of Clause 1, Article 88 of Law on Marriage and Family 2014, the child born during the marriage period is defined as the common child of the couple.  According to Mrs. Nguyen Thi Minh T, this is her stepchild in an unexpected accident.  She determined that this is her own child, not the child of Hsu Ming-F, so she asked the Court to assign the child to her and withdraw a request to force Mr. Hsu Ming-F to provide child support.  During the process of handling, Mr. Hsu Ming-F expresses that Mrs. Nguyen Thi Minh T and he do not have a common child.  Apart from the litigants' statements, there is no other documentary evidence showing that Nguyen Hai M is not the son of Hsu Ming-F.  Ms. T does not father file a lawsuit for paternity determination, but asks the Court to assign the child to her for continue rearing.  The Panel finds that Nguyen Hai M (temporary name) is still 12 months old and is currently being nurtured and cared for by Mrs. T, so to ensure the best interests of the child, the Panel assigns Nguyen Hai M (temporary name), born on June 22, 2018, to Mrs. Nguyen Thi Minh T in accordance with the provisions of Clause 3, Article 81 of the Law on Marriage and Family 2014. If there is a dispute over paternity determination related to this child later, it will be resolved by another case.

[4.2]. Regarding child support claims: In the minutes dated February 22, 2019, Mrs. T withdrew her claim for child support from Mr. Hsu Ming - F. Her withdrawal is voluntary, so the Panel, pursuant to Article 244 of the Civil Procedure Code 2015, suspend Nguyen Thi Minh T.'s claim for child support.

[5]. Regarding common property:

[5.1]. During the marriage period, Mrs. Nguyen Thi Minh T received the transfer of the land use right of 95.6m2 of rural residential land with a long-term use term at land plot No. 558, map sheet No. 8, the address: Village M 2, Commune H, District V, Bac Giang Province, with the Land Use Right Certificate No. CD 152521 dated April 27, 2016 issued by Department of Natural Resources and Environment of Bac Giang to Mrs. Nguyen Thi Minh T, born in 1990, identity card No. 121921***. Permanent residence: Village N, Commune C, District L, Bac Giang Province.  Mrs. Nguyen Thi Minh T asked the Court to determine that the above land parcel is the private property of Mrs. T. In the process of resolving the case, Mr. Hsu Ming - F confirmed that he and Mrs. Nguyen Thi Minh T do not have any common property.  The litigants' testimony is voluntary and consistent with the supporting documents in the file.  Thus, the Panel determines that the land use right of 95.6m2 of rural residential land, long-term use term at land plot No. 558, map sheet No. 8, address:  Village M 2, Commune H, District V, Bac Giang Province, with the Land Use Right Certificate No. CD 152521 dated April 27, 2016 issued by Department of Natural Resources and Environment of Bac Giang to Mrs. Nguyen Thi Minh T, born in 1990, identity card No. 121921***. Permanent residence: Village N, Commune C, District L, Bac Giang Province is the private property of Mrs. Nguyen Thi Minh T. Mrs. Nguyen Thi Minh T is allowed to exercise the rights and obligations of the property owner in accordance with regulations of the Civil Code 2015 and the rights and obligations of land users according to the provisions of the Land Law 2013.

[5.2]. Regarding common property obligations:  Mrs. Nguyen Thi Minh T and Mr. Hsu Minh-F determined that they have no common debt, it should not be considered further.

[6] Regarding the cost of proceedings:  Pursuant to the provisions of Clause 4, Article 147; Article 151; Clause 3, Article 153; Article 154 of Civil Procedure Code 2015; Point a, Clause 2 and Clause 5, Article 27 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly on the court fees and charges, exemption, reduction, collection, payment, management and use thereof, this case shall be handled as follows:

[6.1] Regarding first instance divorce court fee: Mrs. Nguyen Thi Minh T has to bear VND 300,000 for the first-instance divorce court fee, but is deducted from the amount of VND 300,000 already paid in advance at the Department of Civil Judgment Enforcement of Bac Giang province.  It is certified that Mrs. Nguyen Thi Minh T has paid the first-instance civil court fee already.

[6.2]. Regarding the court fee for recognizing property ownership and recognizing land use rights:  Mrs. Nguyen Thi Minh T has to bear VND 300,000 for the first-instance civil court fee, but is deducted from the amount of VND 3,800,000 already paid in advance according to the receipt No. AA/2018/0000223 dated February 25, 2019 at the Department of Civil Judgment Enforcement of Bac Giang province.  Mrs. Nguyen Thi Minh T will be returned VND 3,500,000 of the paid court fee advance.

It is certified that Mrs. Nguyen Thi Minh T has paid the first-instance civil court fee already.

[6.2] On judicial assistance charge:

- Regarding the offshore judicial assistance charge:  Mrs. Nguyen Thi Minh T has to bear VND 200,000 for the offshore judicial assistance charge, but is deducted from the amount of VND 200,000 already paid in advance according to the receipt No. AA/2012/07483 dated September 6, 2018 at the Department of Civil Judgment Enforcement of Bac Giang province.  It is certified that Mrs. Nguyen Thi Minh T has paid the first-instance civil court charge already.

- Regarding the charge for sending the judgment aboard:  Mrs. Nguyen Thi Minh T has to bear VND 200,000 for the offshore judicial assistance charge, but is deducted from the amount of VND 200,000 already paid in advance according to the receipt No. AA/2018/0000222 dated February 25, 2019 at the Department of Civil Judgment Enforcement of Bac Giang province.  It is certified that Mrs. Nguyen Thi Minh T has already paid the charge for sending the first instance civil judgment abroad.

[7] With reference to the right to appeal: The involved parties are entitled to appeal the judgment according to Article 271; Article 273 and Clause 2, Article 479 of the Civil Procedure Code 2015.

For the foregoing reasons, 

DISPOSITION

Pursuant to Clause 1, Article 51; Clause 1, Article 53; Clause 1, Article 56; Article 57; Article 58; Article 59; Article 62; Article 81; Article 83; Article 88; Article 2, Article 123; Article 127 of the Law on Marriage and Family 2014; Clause 1, Article 28; Clause 3, Article 35; Point c, Clause 1, Article 37; Clause 4, Article 147; Article 151; Clause 3, Article 153; Article 154; Clause 1, Article 227; Clause 1, Article 228; Article 238; Article 271; Article 273; Article 244; Article 264; Article 266; Point b, Clause 5, Article 477; Clause 2, Article 479 of the Civil Procedure Code 2015; Point a, Clause 2 and Clause 5, Article 27 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on the court fees and charges, exemption, reduction, collection, payment, management and use thereof, the Panel hereby declares:

1. Regarding conjugal relationship: award Mrs. Mrs. Nguyen Thi Minh T a divorce from Mr. Hsu Ming - F.

2. With reference to common children:

2.1. Grant custody of Nguyen Hai M (temporary name), born on June 22, 2018, to Mrs. Nguyen Thi Minh T.

2.2. Suspend Nguyen Thi Minh T's child support claim against Mr. Hsu Ming - F.

3. Determination of land use rights of 95.6m2 of rural residential land, long-term use term at land plot No. 558, map sheet No. 8, address:  Village M 2, Commune H, District V, Bac Giang Province, with the Land Use Right Certificate No. CD 152521 dated April 27, 2016 issued by Department of Natural Resources and Environment of Bac Giang to Mrs. Nguyen Thi Minh T, born in 1990, identity card No. 121921***. Permanent residence: Village N, Commune C, District L, Bac Giang Province is the private property of Mrs. Nguyen Thi Minh T. Mrs. Nguyen Thi Minh T is allowed to exercise the rights and obligations of the property owner in accordance with regulations of the Civil Code 2015 in Viet Nam and the rights and obligations of land users according to the provisions of the Land Law 2013 in Viet Nam.

4. Regarding the cost of proceedings:

4.1. Regarding court fee: Mrs. Nguyen Thi Minh T has to bear VND 300,000 (Three hundred thousand dong) for the first-instance civil court fee, but is deducted from the amount of VND 300,000 (Three hundred thousand dong) already paid in advance according to the receipt No. AA/2012/07478 dated August 24, 2018 at the Department of Civil Judgment Enforcement of Bac Giang province.  It is certified that Mrs. Nguyen Thi Minh T has paid the first-instance civil court fee already.

4.2. Regarding the court fee for recognizing property ownership and recognizing land use rights:  Mrs. Nguyen Thi Minh T has to bear VND 300,000 for the first-instance civil court fee, but is deducted from the amount of VND 3,800,000 already paid in advance according to the receipt No. AA/2018/0000223 dated February 25, 2019 at the Department of Civil Judgment Enforcement of Bac Giang province.  Mrs. Nguyen Thi Minh T will be returned VND 3,500,000 of the paid court fee advance.

It is certified that Mrs. Nguyen Thi Minh T has paid the first-instance civil court fee already.

4.3. Regarding the offshore judicial assistance charge:  Mrs. Nguyen Thi Minh T has to bear VND 400,000 for the offshore judicial assistance charge, but is deducted from the amount of VND 200,000 already paid in advance according to the receipt No.  AA/2012/07483 dated September 6, 2018 and the amount of VND 200,000 of the judicial assistance charge according to the receipt No. AA/2018/0000222 dated February 25, 2019 at the Department of Civil Judgment Enforcement of Bac Giang province. It is certified that Mrs. Nguyen Thi Minh T has paid the judicial assistance charge already.

5. With reference to right to appeal:

5.1. Mr. Hsu Ming - F, currently residing abroad, not appearing in court, has the right to appeal the judgment within 1 month (30 days) from the date on which the judgment is duly served or posted up in accordance with the law.

5.2. Mrs. Nguyen Thi Minh T, currently residing in Vietnam, not appearing in court, has the right to appeal the judgment within 15 days from the date on which the judgment is duly served or posted up in accordance with the law.

In case the court judgment or 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 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