Judgment no. 47/2016/HNGD-ST dated july 29, 2016 on marriage and family dispute

THE PEOPLE’S COURT OF NGHE AN PROVINCE

JUDGMENT NO. 47/2016/HNGD-ST DATED JULY 29, 2016 ON MARRIAGE AND FAMILY DISPUTE

On July 29, 2016, the public trial was conducted at the People’s Court of Nghe An Province to hear the handled case No. 66/2016/TLST-HNGD dated July 15, 2016 regarding the “Marriage and Family Dispute” pursuant to the Decision to bring the case to the trial No. 48/2016/QDST dated July 19, 2016 between the following persons concerned: 

*Plaintiff: Ms. Dang Thi N D - born in 1988, address:  Block 7, Truong Thi Ward, Vinh City, Nghe An Province. She has submitted a petition for in absentia trial.

*Defendant:  Mr. Le X H, born in 1987, Passport No.:  B7848720 issued by the Immigration Department affiliated to the Ministry of Public Security on May 03, 2013, registered permanent residence before immigration:  Hamlet 10, Son Thanh Commune, Yen Thanh District, Nghe An Province.  Current residence:  152 Vincent Street, North Perth WA 6006, Australia. He has also submitted a petition for in absentia trial.

FINDING THAT

According to the petition for divorce dated June 18, 2016 and testimony, Ms. Dang Thi N D stated:  She voluntarily got married to Mr. Le X H and carried out procedures for registration of marriage at the People’s Committee of Son Thanh Commune, Yen Thanh District, Nghe An Province on December 10, 2013. After getting married, Mr. Huan attended an overseas course in Australia and she lived in Vietnam. In March, she immigrated to Australia under the sponsorship of Mr. Huan for family reunion.  Marital conflicts have arisen during their marital life because they have inharmonious characters, Mr. Huan did not take care of her in terms of both material and spiritual matters, and they frequently bickered with each other; although their families had admonished them, the conjugal sentiment could not be improved and their marital conflicts still occurred and were more and more serious. Thus, they could not live together anymore and have legally separated for the last four months.

For these reasons, Ms. Diep requested the Court to allow her to get a divorce from Mr. La X H. Regarding the child of this marriage:  They have a child, namely Le Bao Anh, born on January 11, 2014. Currently, the child Le Bao Anh is nursed by her paternal grandparents (Mr. Huan’s parents).  Getting divorce, Ms. Diep requests the Court to grant the physical custody of the child of this marriage to her and requests Mr. Huan to pay the child support of VND 3,000,000 (Three million) per month. Regarding conjugal property and debts:  They do not have the conjugal property and debts, and so do not request the Court to make judgment on these matters.

Although Mr. Le X H is absent from the trial, according to his testimony, he stated:  He agreed with Ms. Diep's statements about their marriage, marital conflicts and reasons thereof.  After getting married, he moved to Australia for attending an overseas course. In March, 2015, he sponsored Ms. Diep to immigrate to Australia for family reunion so that they can live and share difficulties in life together. They lived happily together for a short period. Then, marital conflicts occurred during their marital life because of difference in their points of view and jealous love.  Additionally, Ms. Diep was unemployed, they faced economic difficulties. Although their families advised, their marital conflicts were more and more serious, the conjugal sentiment could not be improved, and they could not live together anymore and have legally separated for the last four months. Currently, their conjugal sentiment no longer exists, he requested the Court to allow him to get a divorce from Ms. Diep.

Regarding the child of this marriage:  They have a child, namely Le Bao Anh, born on January 11, 2014. Currently, this child is taken care of and nursed by his parents.  Because he is studying abroad, he cannot take the physical custody of this child, so he requests the Court to grant the physical custody of this child to Ms. Diep.  Mr. Huan shall pay the child support of VND 3,000,000 (Three million) per month.

Regarding conjugal property and debts:  They do not have the conjugal property and debts, and so do not request the Court to make judgment on these matters.

Mr. Huan is studying abroad, he cannot attend the trial, and so he requests the Court to conduct the trial in his default. He authorizes nobody to attend the trial.

Ms. Diep is absent from the trial but requests the Court in writing to keep the contents of her petition for divorce unchanged and requests the Court to conduct the trial in her default.

DEEMING THAT

After having carefully examined documents in the case file and statements of the persons concerned publicly announced and investigated at the trial;  The Trial panel judges:

Regarding the court procedures:  After the case was handled, Ms. Dang T N D has herself given her testimony and submitted an application for the trial in absentia.  Because Mr. Le X H is studying abroad, he cannot return to Vietnam for attending reconciliation sessions as well as this trial but he has provided his testimony that he also agreed with Ms. Diep's request for divorce, and he requests the Court to hear the case in his default.  The testimony of Mr. Le X H has been legalized by Vietnamese Consulate General in Australia. Pursuant to Clause 2 Article 207, Clause 1 Article 228, Point a Clause 5 Article 477 of the 2015 Civil Procedure Code, the Court’s decision to hear the case in absence of the persons concerned is consistent with applicable laws.

Regarding contents of the case: The marriage between Ms. Dang Thi N D and Mr. Le X H is voluntary with the registration of marriage made in accordance with applicable laws.  After getting married, they lived happily together for a short period. Then, marital conflicts occurred.  Such marital conflicts occurred because they have different points of view in life and do not trust in each other.  They no longer take care of each other materially and spiritually.  Both Ms. Diep and Mr. Huan unanimously request the court to settle their petitions for divorce. Deeming that marital conflicts between Ms. Diep and Mr. Huan are really serious, their conjugal life could not be maintained, they have legally separated for the last four months, and marital purposes could not achieve.  Thus, Ms. Diep and Mr. Huan should be allowed to get divorce according to Article 56 of the Law on marriage and family.

Regarding the child of this marriage:  They have a child, namely Le Bao Anh, born on January 11, 2014. Both Ms. Diep and Mr. Huan agreed that after getting divorce, the physical custody of this child shall be granted to Ms. Diep and Mr. Huan shall pay the child support of VND 3,000,000 (Three million) per month.  On the other hand, the child Le Bao Anh does not reach enough 36 months of age and needs the care from her mother.  Thus, granting the physical custody of the child Le Bao Anh to Ms. Diep is conformable with actual conditions and consistent with laws, and can ensure the best interests of the child Le Bao Anh.  Mr. Huan is entitled and obliged to visit the child of this marriage. Nobody can prevent him from exercising this right.

Regarding conjugal property and debts:  The court shall not consider these matters because of no request submitted by the persons concerned.

The court fees:  Ms. Dang Thi N D shall fully pay the first-instance divorce court fees.  Mr. Le X H must pay the court fees regarding person obliged to pay child support.

For the said reasons;

THE COURT DECIDES

Pursuant to Articles 56, 58, 81, 82, 83 of the Law on marriage and family, Clause 2 Article 207, Clause 1 Article 228, Point a Clause 5 Article 477, and Article 147 of the Civil Procedure Code, Article 27 of the Ordinance on court fees and charges; To judge that:

- Regarding marital relationship:  Ms. Dang Thi N D and Mr. Le X H are allowed to get divorce.

- Regarding the child of this marriage:  The physical custody of the child of this marriage, namely Le Bao Anh, born on January 11, 2014, is granted to Ms. Dang Thi N D.  Mr. Le X H shall pay the child support of VND 3,000,000 (Three million) per month as of July, 2016 until the child Le Bao Anh reaches the age of majority.  Mr. Le X H is entitled and obliged to visit the child of this marriage. Nobody can prevent him from exercising this right.

- The court fees:  Ms. Dang Thi N D must pay VND 200,000 of the first-instance divorce court fees. This amount is deducted from the court fees of VND 200,000 temporarily paid to the Civil Judgment Enforcement Department of Nghe An Province under the Receipt No. 0002460 dated July 14, 2016. Ms. Dang Thi N D must also pay VND 100,000 (one hundred thousand) of the court fees regarding person obliged to pay child support.

From the date on which the judgment creditor submits the petition for judgment enforcement until all amounts are fully paid, the judgment debtor must monthly incur interests on late payments according to the basic interest rate announced by the State Bank of Vietnam for the period during which the judgment is not yet enforced.

In case the judgment is enforced as per regulations in Article 2 of the Law on enforcement of civil judgments, 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.

Ms. Dang Thi N D is entitled to appeal against the judgment to the People’s Supreme Court in Hanoi City within 15 days from the date on which she receives this judgment or this judgment is properly posted.  Mr. Le X H is entitled to appeal against the judgment to the People’s Supreme Court in Hanoi City within 01 month from the date on which he is served with this judgment or this judgment is publicly posted in accordance with applicable laws.