Judgment no. 41/2017/HNGD-ST dated april 28, 2017 on divorce and dispute over child custody and division of marital property

THE PEOPLE’S COURT OF HAI PHONG CITY

JUDGMENT NO. 41/2017/HNGD-ST DATED APRIL 28, 2017 ON DIVORCE AND DISPUTE OVER CHILD CUSTODY AND DIVISION OF MARITAL PROPERTY  

On April 28, 2017, the public first-instance trial was conducted at the headquarters of the People’s Court of Hai Phong City to hear the handled case No. 77/2016/TLST-HNGD dated June 23, 2016 on disputes over divorce, child custody and division of marital property pursuant to the Decision to bring the case to the trial No. 315/2017/QDXXST-HNGD dated March 08, 2017 between the following litigants:

1. Plaintiff:  Ms. Le Thuy D - born in 1989, address:  No. 6D38, D Ward, N District, Hai Phong City;

2. Defendant: Mr. Nguyen C, born in 1983, address:  132 S, Canada.

Ms. D is present at the court; Mr. Nguyen C is absent from the court.

CONTENTS OF THE CASE

According to the petition for divorce and the testimony, the plaintiff, Ms. Le Thuy D, stated:  She and Mr. Nguyen C voluntarily got married and carried out procedures for marriage registration on January 29, 2010 at the Justice Department of Hai Phong City. One week after getting married, Mr. Nguyen C returned to Canada.  

They communicated with each other by mailing for the first two years of their marriage. Then, she could not contact Mr. Nguyen C. She has been losing touch with Mr. Nguyen C for the last four years. Now, she finds that her sentiments towards Mr. Nguyen C no longer exist, so she petitions for divorce from him. Regarding the children of this marriage and marital property:  Because they have neither children nor marital property, she does not request the Court to make judgments on these matters.

Because Mr. Nguyen C holds foreign nationality and currently lives abroad, after handling the case, the People’s Court of Hai Phong City has carried out procedures for judicial assistance to request competent authorities of Canada to send the notice of case handling to Mr. Nguyen C, take his statements, and inform him of scheduled date of the public trial for announcing/ presenting evidences and reconciliation as well as this court date but this Court receives no responses from him. 

Ms. Le Thuy D is present at this trial and still keeps her request for divorce from Mr. Nguyen C and opinions unchanged. Because they have no children and no marital property, she does not request the Court to make judgments on these matters.

The representative of the People’s Procuracy of Hai Phong City expresses his/her opinions about the case as follows:

Regarding the court procedures:  The Judge and the Trial panel have strictly complied with regulations laid down in the Civil Procedure Code on case handling, sending of the Court’s documents on proceedings, collection and verification of evidences, and the first-instance trial.  The plaintiff has sufficiently exercised and performed her rights and obligations.  According to the Official Dispatch No. 1247/BTP-PLQT dated May 04, 2017 of the Ministry of Justice, Mr. Nguyen C has been informed by competent authorities of handling of the case and the court date but he provided no response to the court; additionally, such notices have been publicly posted; thus, the court's decision to hear the case in the defendant's absence is consistent with the civil procedure code.

Regarding contents of the case: The Court has exactly determined the legal relationship and the jurisdiction over this case.  Ms. D and Mr. Nguyen C have been losing touch for the last three years and their conjugal sentiment no longer exist, so the Court is requested to accept Ms. D’s petition for divorce. Because they have neither children of this marriage nor marital property, the Trial panel is not requested to consider these matters.  Ms. D is liable to pay the court fees in accordance with applicable regulations.

JUDGMENTS OF THE COURT 

Based on documents and evidences in the case file, statements of the litigants and opinions given by the People’s Procuracy at this trial, the Court judges:

Regarding legal relationship and the court jurisdiction:  Ms. Le Thuy D and Mr. Nguyen C voluntarily got married and carried out procedures for registration of their marriage at the Justice Department of Hai Phong City on January 28, 2010, so this is legal marital relationship as defined in Article 9 and Article 11 of the Law on marriage and family in 2000 in Viet Nam. Mr. Nguyen C is living abroad, so the People's Court of Hai Phong City has the jurisdiction over this divorce case in accordance with Clause 3 Article 35, Point c Clause 1 Article 40 and Point d Clause 1 Article 469 of the Civil Procedure Code in Viet Nam.

Regarding the absence of the litigant from the trial:  The Court has carried out procedures for judicial assistance to request foreign competent authorities to send the notice of case handling to Mr. Nguyen C, take his statements, and inform him of scheduled date of the public trial announcing/ presenting evidences and reconciliation as well as this court date.   At 08:00 AM, on March 28, 2017, the Court has delayed the trial because the Court did not receive results of delivery of procedural documents as well as statements and/or documents from Mr. Nguyen C, and the Court has requested the Ministry of Justice to give a notice of results of delivering the Court’s procedural documents to Mr. Nguyen C. On April 17, 2017, the Court received the Official Dispatch No. 1247/BTP-PLQT dated April 05, 2017 of the Ministry of Justice which certifying that notices and other procedural documents have been sent to Mr. Nguyen C and publicly posted through judicial assistance from foreign competent authorities but Mr. Nguyen C did not appear to receive such documents.  Pursuant to Clause 4, Point c Clause 5 Article 477 of the Civil Procedure Code, the Court decides to conduct the trial in absence of Mr. Nguyen C.

Regarding marital relationship: One week after getting married, Mr. Nguyen C returned to Canada and they communicated with each other by mailing and phone. But two years later, Ms. Le Thuy D could not contact with Mr. Nguyen C. Ms. Le Thuy Dung has been losing touch with Mr. Nguyen C over the past four years.   Thus, the conjugal life between Ms. Le Thuy D and Mr. Nguyen C has not existed for many years. Ms. Le Thuy D’s statement that her sentiments towards Mr. Nguyen C no longer exist and her petition for divorce are true and legitimate.  Hence, Ms. Le Thuy D’s petition for divorce should be accepted according to Article 51 and Article 56 of the Law on marriage and family in 2014.

Regarding the children of this marriage and marital property:  According to Ms. Le Thuy D’s statements, she and Mr. Nguyen C have neither children nor marital property, and so she does not request the Court to make judgment on these matters. Hence, the Court shall not consider these matters.

Regarding the first-instance civil court fees:  Because Ms. Le Thuy D is the plaintiff, she must pay the first-instance divorce court fees in accordance with applicable laws.

Regarding the judicial entrustment costs:  Ms. Le Thuy D is liable to pay the judicial entrustment fees in accordance with applicable regulations.

Regarding the right to appeal against the judgment:  Ms. Le Thuy D and Mr. Nguyen C are entitled to appeal against this judgment in accordance with applicable laws.

For the said reasons,

THE COURT DECIDES

Pursuant to Article 51 and Article 56 of the Law on marriage and family in 2014 in Viet Nam;

Pursuant to Clause 3 Article 35, Point c Clause 1 Article 40, Clause 4 Article 147, Clause 2 Article 207, Clause 2 Article 227, Clause 1 Article 228, Article 266, Clause 1 Article 273, Point d Clause 1 Article 469, Clause 4, Point c Clause 5 Article 477, Clause 2 Article 479 of the Civil Procedure Code;

Pursuant to Clause 8 Article 27 of the Ordinance No. 10/2009/UBTVQH12 in Viet Nam on the court fees and charges dated February 27, 2009 of the 12^th session of the Standing Committee of the National Assembly;

To judge that:  The petition for divorce of Ms. Le Thuy D is accepted.

- Regarding marital relationship: Ms. Le Thuy D is allowed to get divorce from Mr. Nguyen C.

- Regarding the children of this marriage and marital property:  Ms. Le Thuy D stated that they have neither children nor marital property, and so she does not request the Court to make judgment on these matters. Hence, the Trial panel does not consider these matters.

- Regarding the first-instance civil court fees:  Ms. Le Thuy D must pay VND 200,000 (two hundred thousand) of the first-instance divorce court fees. This amount is deducted from the first-instance civil court fees of VND 200,000 temporarily paid under the Receipt No. 0008474 dated June 23, 2016 at the Department of Civil Judgment Enforcement of Hai Phong City. Ms. D has fully paid the court fees.

- Regarding the judicial entrustment costs:  Ms. Le Thuy D must pay VND 150,000 of the costs of request for judicial assistance for sending the notice of case handling to Mr. Nguyen C, taking his statements, and informing him of scheduled dates of the trial announcing and presenting evidences and reconciliation, and this court date, and VND 200,000 of the judicial assistance fees for sending this judgment to Mr. Nguyen C. These costs and fees shall be deducted from VND 150,000 of judicial assistance fees temporarily paid by Ms. Le Thuy D under the receipt No. 0003555 dated July 11, 2016 of the Department of Civil Judgment Enforcement of Hai Phong City.  Ms. Le Thuy D shall pay the remaining amount of VND 200,000.

- Regarding the right to appeal against the judgment:

+ Ms. Le Thuy D is entitled to appeal against the judgment within 15 days from the date of judgment announcement.

+ Mr. Nguyen C is entitled to appeal against the judgment within 12 months from the date of judgment announcement.

In case the court’s judgment is enforced as per regulations in Article 2 of the Law on enforcement 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 Articles 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./.