Judgment No. 43/2017/HNGD-ST dated September 22, 2017 on marriage and family dispute

PEOPLE’S COURT OF VINH TUONG DISTRICT, VINH PHUC PROVINCE

JUDGMENT NO. 43/2017/HNGD-ST DATED SEPTEMBER 22, 2017 ON MARRIAGE AND FAMILY DISPUTE

On September 22, 2017, the trial was conducted publicly at the office of People’s Court of Vinh Tuong District, Vinh Phuc Province to hear the case No. 207/2017/TLST-HNGD dated August 15, 2017 regarding a marriage and family dispute according to the Decision to Bring the Case to Trial No. 78/2017/QDXXST dated September 1, 2017 between litigants:

1. Petitioner:  Mrs. Tran Thi Bich H, born in 1990.

Registered permanent residence: Street B, Commune M, District M, Nam Dinh Province; current address and working place: HOTET BLUS- BULHARSKA 72 BRATISSLAVA-SLOVAKIA; learning language at school: ZIXKOVA 10, 81102 BRATISLAVA- SLOVAKIA (absent).

2. Respondent:  Mr. Tran Kim T, born in 1983.

Place of residence: Zone 5, Village D, Commune V, District V, Vinh Phuc Province (absent).

Legal representatives of Mr. Tran Kim T:  Mrs. Ha Thi T, born in 1958 (Mr. T’s mother, present).

Mr. Tran Van H, born in 1955 (Mr. T’s father, absent).

Place of residence: Zone 5, Village D, Commune V, District V, Vinh Phuc Province.

3. Persons with related interests and obligations:

- Mrs. Nguyen Thi M, born in 1961 (Mrs. H’s mother, present).

Place of residence: Street B, Commune M, District M, Nam Dinh Province.

THE CASE

Representation of petitioner Mrs. Tran Thi Bich H in the petition for divorce dated March 6, 2017 and the testimony dated March 27, 2017: She got married to Mr. Tran Kim T on October 15, 2012. After a courtship, they married and registered marriage at the People’s Committee of Commune V, District V. Following the wedding day, she moved to live together with Mr. T’s family and their marital bond was as usual as other couples. In 2013, she and Mr. T came into many conflicts because they were mismatched, so in July 2013, she took their children to her parents’ house and they have lived separately since then. While the legal proceedings have been in progress, on May 6, 2017, Mrs. H went to Slovakia to do business together with her relatives. She has lived at the address Hotet Blus – Bulharska 72 - Bratislava – Slovakia and has studied language at the School Zizkova 10, 81102 bratislava - slovakia. Now, deeming that they no longer have marital bond, she asks for divorce from Mr. T. Besides, she has been away on business, she requests the Court to try the case in her absence (she submitted a Request for Trial in Absentia).

At the court hearing, the respondent Mr. Tran Kim T is absent, Mr. T cannot write a testimony and the Court also cannot take the deposition from him, but Mrs. Ha Thi T (Mr. T’s mother) says that: In 2013, Mr. T met with a traffic accident which left him a sequelae not completely recovered until now. Mrs. T asked Mr. T if he agrees to Mrs. H’s petition for divorce, he shook his head as a disagreement, Mrs. T kept asking him about the custody of Tran Quoc L (their child), he did not answer.

With reference to common children: Mrs. H declares that she and Mr. T have a common child Tran Quoc L, born on November 6, 2013, now he is living with Mrs. Nguyen Thi M (Mrs. H’s mother). She also claims custody of L and does not require Mr. T to provide the child support.

With reference to common property: Mrs. H claims that she and Mr. t have no common property. With reference to private property: Mrs. H does not request the Court to settle.

With reference to common liability: Mrs. H declares that she and Mr. T do not lend money to or borrow money from anyone.

With reference to contribution: Mrs. H declares that while she had lived with Mr. T’s family, she did not buy or contribute anything, so she does not request any payment compensating for her contribution upon divorce.

Representation of Mr. T’s legal representatives: Mr. Tran Van H (absent) and Mrs. Ha Thi T (present) at the court hearing: She admits that Mrs. H told the truth of their marriage time, after wedding, Mrs. H moved to live together with her family. On March 29, 2013 (lunar calendar), Mr. T met with a traffic accident resulting in traumatic brain injury and blindness, he could not walk without a supporter and could only say a few sentences. Mrs. H did not come into any conflict with Mrs. T and Mr. H, in August 2013, Mrs. H took the child to her parents’ house on Street B, Commune N, District M, Nam Dinh Province since then. In fact, Mrs. H and Mr. T have lived separately for such a long time that could not reunite, now, if Mrs. H asks for a divorce from Mr. T, Mrs. T and Mr. H agree. They do not make any request in terms of pronouncement of limitation or lacks of legal capacity against Mr. T because currently his health has become better.

Mrs. H and Mr. T have a common child Tran Quoc L, born on November 6, 2013, now he is living with Mrs. Nguyen Thi M (H’s mother) because Mrs. H has been away on business abroad. Now, they request the Court to give the child custody to Mrs. H because Mr. T is unable to work. With reference to common property, Mrs. H and Mr. T have no common property. Mrs. H and Mr. T do not owe anyone, Mrs. H has no agricultural land. Mrs. H also has not contributed or bought any property for their family. While the Court has been resolving the divorce case between Mrs. H and Mr. T, on May 6, 2017, Mrs. H went to Slovakia to do business with her relatives. Although they knew that fact, they gave no opinions.

Representation of Mrs. Nguyen Thi M: She is mother of Mrs. H, she married her daughter off to Mr. T in about October 2012, before the wedding in Vietnam, they had a courtship when they had worked in Japan. After wedding, Mr. T worked as a crane operator in Viet Tri and Mrs. H returned to Nam Dinh to works in the hairdresser’s as an apprentice. In days off, Mr. V went to Nam Dinh to visit her. So, there is no conflict between them and between two families. 5 months after the wedding, Mr. T met with a traffic accident and Mrs. H still took care of him thoughtfully. Mr. T suffered hemiplegia and could only say a few sentences, his eyes seemed blind and he could not walk without any supporter. Due to the fact that Mr. T’s health did not improve and Mrs. H saw no future with him, she felt discouraged and applied for divorce from him. Mr. T's parents agreed to her petition for divorce as well. While the Court has been resolving her case, on May 6, 2017, she went to Slovakia to do business together with her relatives. After that, she filed a Request for Trial in Absentia with the Court, now, Mrs. M requests the Court to grant a divorce to Mrs. H.

With reference to common children: Mrs. H and Mr. T have a common child Tran Quoc L, born on November 6, 2013, who is living with her now, she requests the Court to award the custody of L to Mrs. H, because Mr. T is unable to raise and take care of L now.

With reference to common property: No claim is made.

At the court hearing, the People’s Procuracy of Vinh Tuong requests: Not to accept the petition for divorce from Mr. Tran Kim T filed by Mrs. Tran Thi Bich H.

JUDGEMENT OF THE COURT

After consideration of the case files assessed and the representation process at the court hearing, the Trial Panel judges as follows:

Regarding civil proceedings: Mrs. Tran Thi Bich H filed a petition for divorce with People’s Court of Vinh Tuong District as prescribed in Article 29 of the Civil Procedure Code in Viet Nam, thus, the case falls under jurisdiction of People’s Court of Vinh Tuong District.

Although Mrs. H is absent from the hearing because she has been away on business in Slovakia, she submitted her testimony and a Request for Trial in Absentia. Therefore, pursuant to Article 227 of the Civil Procedure Code, the Court conducts the trial in absence of Mrs. Hanh and pursuant to Article 471 of the Civil Procedure Code, the case falls under jurisdiction of the People’s Court of Vinh Tuong District.

Although Mr. T is absent from the hearing, there are his legal representatives, and despite the absence of Mr. H, his statement is available. Therefore, pursuant to Article 227 of the Civil Procedure Code, the Court conducts the trial in absence of aforesaid litigants.

[1] With reference to conjugal relationship: In 2012, Mrs. Tran Thi Bich H got married to Mr. Tran Kim T on a voluntary basis. Before wedding, they had a courtship and registered their marriage. Thus, it is a legal marriage. At first, they had a happy marriage and 1 common child. However, Mr. T met with a traffic accident later. His health did not improve. He suffered hemiplegia, his eyes are likely blind and he could not walk without any supporter. From then, Mrs. Hanh got discouraged and took the child to her parents’ house from July 2013, they have lived separately since then. While the court has been resolving the case, Mrs. H went to Slovakia to do business. Therefore, the People’s Court of Vinh Tuong District transferred the case file to People’s Court of Vinh Phuc Province to resolve with proper jurisdiction. Clause 471 of the Civil Procedure Code 2015 stipulates as follows:  “Any civil case involving foreign elements which has been accepted for settlement by a Vietnamese Court under this Code’s provisions on jurisdiction must be continually settled by such Court even though during the resolution process there appear changes of nationalities, residential places or addresses of involved parties or appear new details which make such civil case falls under the jurisdiction of another Vietnamese Court or foreign court”. Therefore, People’s Court of Vinh Phuc transferred the case back to People’s Court of Vinh Tuong District to resolve under proper jurisdiction.

Mr. Tran Van H, Mrs. Ha Thi T (Mr. T’s parents) also admit that Mrs. H and Mr. T have lived separately for such a long time that could not reunite. So, they request the Court to grant Mrs. H a divorce from Mr. T. In fact, they have separated since July 2013, it proves that their marital bond seems loose, the purpose of marriage is not achieved. As for the above facts and matters, pursuant to Article 51, 56 of the Law on Marriage and Family, it is deemed appropriate to grant Mrs. H a divorce from Mr. T.

[2] With reference to common children: Mrs. H, Mr. T have a common little child L who is living with Mrs. M (Mrs.H’s mother), Mrs. H claims custody of L and does not require Mr. T to provide any child support, Mr. H, Mrs. T, Mrs. M agreed. It is necessary to award Mrs. H the custody of L until he attains the age of majority or Mr. T has any other request as prescribed in Articles 81, 82, 83 of the Law on Marriage and Family in Viet Nam.

Nobody may prevent the right to visit and take care of the common child.

With reference to child support: Mrs. H does not require Mr. T to provide child support so the Trial Panel does not settle it.

[3] With reference to common property: Mrs. Ha and Mr. T have no common property.

[4] With reference to common property: Mrs. H does not request the Court to settle.

[5] With reference to common liability: Mrs. H and Mr. T do not lend money to or borrow money from anyone.

[6] With reference to common liability: Mrs. H does not request Mr. T and his family to make any payment for her contribution so the Trial Panel does not consider it further.

First instance civil court fee: Because Mrs. Tran Thi Bich H is a petitioner, she must pay the first instance civil court fee as per the law.

With reference to right to appeal: The litigants have right to appeal the Judgment as prescribed.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Articles 227, 471 of the Civil Procedure Code; Articles 51, 56, 81, 82, 83 of the Law on Marriage and Family; Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges. 

Judges: Grant Mrs. Tran Thi Bich H a divorce from Mr. Tran Kim T.

With reference to common children: Award Mrs. Tran Thi Bich H the custody of Tran Quoc L, who was born on November 6, 2013 until he attains the age of majority or Mr. T has any other request.

Mrs. Tran Thi Bich H does not require Mr. Tran Kim T to provide any child support.

Nobody may prevent the right to visit and take care of the common child.

With reference to common property: Mrs. Tran Thi Bich H and Mr. Tran Kim T have no common property. With reference to private property: Mrs. Tran Thi Bich H does not request the Court to settle.

With reference to common liability: Mrs. Tran Thi Bich H and Mr. Tran Kim T do not lend money to or borrow money from anyone.

With reference to contribution: Mrs. Tran Thi Bich H does not require Mr. Tran Kim T and his family to compensate for her contribution.

First instance civil court fee: Mrs. Tran Thi Bich H has to pay VND 300,000 of first instance court fee, which is deducted from the paid court fee advance according to the receipt No. AA/2014/0004269 dated March 17, 2017 of the Sub-department of Civil Judgment Enforcement of Vinh Tuong District. So, Mrs. H paid the first instance court fee in full.

Litigants may rightfully appeal this judgment within 15 days from the judgment announcement. Mr. Tran Kim T, Mr. Tran Van H who is absent have the right to appeal the Judgment within 15 days the Judgment is served or posted up as per the law.