Judgment No. 57/2017/HNGD-ST dated September 28, 2017 on divorce petition involving foreign elements

PEOPLE’S COURT OF KIEN GIANG PROVINCE

JUDGMENT NO. 57/2017/HNGD-ST DATED SEPTEMBER 28, 2017 ON DIVORCE PETITION INVOLVING FOREIGN ELEMENTS

On September 28, 2017, the first-instance trial court was conducted at the office of People’s Court of Kien Giang province to hear the case No. 24/2016/TLST-HNGD dated May 24, 2016 regarding a divorce petition involving foreign elements.

Pursuant to the Decision to hear the case under first-instance trial No. 60/2017/QDST-HNGD dated September 18, 2017. Parties concerned:

- Petitioner: Mrs. Nguyen Thi M, born in: 1986. Address: KQB village, VK commune, AM district, Kien Giang province (present).

- Respondent: Mr. Tran Thanh L, born in: 1965. Address: 149 OAK ST FOXBORO MA 02035 USA (absent).

THE CASE OF MRS. NGUYEN THI M

Pursuant to the lawsuit complaint dated May 15, 2016 and the representation made at the trial by the petitioner:

From 2006, the petitioner and the respondent knew each other through matchmaking from an aunt. In April, 2008, they got married and held a wedding party at the petitioner’s house and had their marriage registered at the People’s Committee of Kien Giang Province, was granted the Marriage Certificate dated April 4, 2008, recorded in the marriage register No. 148, volume 01 dated April 9, 2008. After living together for a half of month, the respondent returned to America. At first, they still kept regular contact with each other. About a half of year after marriage, the respondent tried to complete paperwork to sponsor the spouse, but the it failed because of unsuccessful interview. Since then, the conflicts arose between them causing them out of touch up to now.

The petitioner deemed that they was no longer having feeling for each other, the purpose of marriage is not achieved.  Up to now, they no longer keep in touch with each other, so the petition filed for divorce from the respondent to settle in a new life.

With reference to common children, property and liabilities: They have no common child, property or liability so the court is not petitioned to settle.

After accepting the case, People's Court of Kien Giang province entrusted the Embassy of the Socialist Republic of Vietnam in America with judicial capacity to serve the Notice of Hearing to the respondent and to take his statements according to the address provided by the petitioner, which is  OAK ST FOXBORO MA 02035 USA in respect of the divorce petition by the petitioner as regulated by laws; however; the respondent neither showed up to receive the notice nor gave any opinion on the petitioner’s lawsuit petition.

Opinions from the representative of People’s Procuracy of Kien Giang province: People's Court of Kien Giang province has full jurisdiction over the case in which the party concerned – the respondent is a foreigner as authorized. During the settlement of the case and at the trial, the judge, jury, court reporter and the petitioner has conformed to provisions of the Civil Procedure Code.  As for the respondent, although the court has legitimately given the judicial entrustment to serve court papers to him, he neither gave any response nor received the papers served. Hence, the act in which the jury decided to hear a case in the absence of the respondent is legally accepted.

In respect of the petitioner’s lawsuit petition:  As the couple has lost contact with each other for a long time, and failed to live a married life together, they are no longer being in love with each other. Hence, the trial panel is requested to accept the divorce petition of the petitioner. There is no request for resolution as regards common children and common property from the parties concerned so the court is not required to settle. 

JUDGEMENT OF THE COURT

[1] In terms of court procedures: People's Court of Kien Giang province has followed the legitimate procedure to entrust the Embassy of the Socialist Republic of Vietnam with judicial capacity to serve the Notice of Hearing to the respondent as well as collect his statements as per regulations in Joint Circular No.15/2011/TTLT-BTP-BNG-TANDTC in Viet Nam dated September 15, 2011 of the Ministry of Justice, Ministry of Foreign Affairs and Supreme People’s Court which provides “Guidelines for application of certain provisions of the Law on Legal Assistance regarding legal assistance on civil cases”. The General Embassy of Vietnam in San Francisco, America also provided a record affirming that the Notice of Hearing had been served to the respondent on December 6, 2016 as requested by the court but he neither gave response nor showed up to receive the papers served although the entrusted documents had been publicly placed at the General Embassy office for 3 months.  As for that reason, pursuant to Point b Clause 1 Article 15 and 17 of Joint Circular No. 15/2011/TTLT-BTP-BNG-TANDTC dated September 15, 2011 of the Ministry of Justice, Ministry of Foreign Affairs and Supreme People’s Court, and Article 477 of the Civil Procedure Code to hear the case in the absence of the respondent.

[2] With reference to conjugal relationship: The petitioner and the respondent knew each other, got married and were granted the Marriage Certificate dated April 4, 2008 by the People’s Committee of Kien Giang province, recorded in the marriage register No. 148, volume 01 dated April 9, 2008 in accordance with Article 9, Article 10 of the Law on Marriage and Family 2000 in Viet Nam and Article 8, Article 9 of the Law on Marriage and Family 2014 in Viet Nam, so it is a duly legitimate marriage. The purpose of marriage is to build a comfortable, prosperous, civilized and happy family. The spouse has duties to live, love, take care and support each other. The couple, however, stayed in a broken marriage that they lived apart and did not meet with each other so their spousal relationship cannot be maintained. They have lost touch with each other since 2008 and have no feeling for each other, so they cannot build a happy family. Deeming that their purpose of marriage is not achieved and their marriage cannot last longer, the trial panel has valid grounds to accept the divorce petition and the request of the designated representative of the People’s Procuracy of Kien Giang Province and allow the petitioner to lawfully divorce the respondent as prescribed in Article 56 of the Law on Marriage and Family 2014.

[3] With reference to common children: No common child is claimed so the court is not requested to settle.

[4] With reference to common property and liabilities: No common property and liability is claimed so the court is not requested to settle.

[5] With reference to court fee: The court fee shall be paid under provisions in Clause 4 Article 147 of the Civil Procedure Code in Viet Nam, Article 48 of Resolution No.326/2016/UBTVQH1 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly on amount, remission, collection, payment, management and use of court costs and fees, Clause 8 Article 27 and Clause 1 Section I regarding the List of court costs and fees issued together with the Ordinance No.10/2009/UBTVQH12 in Viet Nam dated February 27, 2009 on court costs and fees.

The first-instance civil court cost of VND 200,000 shall be paid by the petitioner; it shall be deducted from the advance of first-instance court cost.

[5] Other proceeding costs: Judicial assistance fees including VND 150,000 according to the receipt No. 0012504 dated May 25, 2016; VND 150,000 according to the receipt No. 0012573 dated January 17, 2017 of Civil judgment Enforcement Agency of Kien Giang Province (paid by Mr. Tran Van S); USD 95 transferred to the account of ABC legal Services company and related fees paid to Vietcombank – Kien Giang branch.

The petitioner has made full payment as prescribed in Clause 3 Article 153 of the Civil Procedure Code.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES:

Pursuant to Clause 3 Article 153, Point d Clause 1 Article 469, Clause 3 Article 474, Point b Clause 5 Article 477, Clause 2 Article 479 of the Civil Procedure Code; Clause 1 Article 56 of Marriage and Family Law 2014; Clause 4 Article 147 of the Civil Procedure Code; Article 48 of Resolution No.326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of National Assembly on amount, remission, collection, payment, management and use of court costs and fees; Clause 8 Article 27, Clause 1 item about the list of court costs and fees issued together with Ordinance No.10/2009/UBTVQH12 dated February 27, 2009 providing for court costs and fees; Point b Clause 1 Article 15 and Article 17 of Joint Circular No.15/2011/TTLT-BTP-BNG- TANDTC dated September 15, 2011 of the Ministry of Justice, Ministry of Foreign Affairs and Supreme People's Court which provides “Guidelines for application of a number of provisions of the Law on Legal Assistance regarding legal assistance in civil cases”

Hereby judges: 

Accept the lawsuit petition of the petitioner.

1. With reference to conjugal relationship: The petitioner is judged to lawfully divorce the respondent.

2. With reference to common children: No common child is claimed so the court is not requested to settle.

3. With reference to common property and liabilities: No common property and liability is claimed so the court is not requested to settle.

4. With reference to court fee: The first-instance civil court cost of VND 200,000 shall be legitimately paid by the petitioner; it shall be deducted from the first-instance court cost paid in advance according to the court cost and fee payment receipt No. 0004935 dated May 18, 2016 issued by the Civil Enforcement Agency of Kien Giang province (paid by Mr. Huynh Dung L).

5. Other proceeding costs: Judicial assistance fees including VND 150,000 according to the receipt No. 0012504 dated May 25, 2016; VND 150,000 according to the receipt No. 0012573 dated January 17, 2017 of Civil judgment Enforcement Agency of Kien Giang Province (paid by Mr. Tran Van S); USD 95 transferred to the account of ABC legal Services company and related fees paid to Vietcombank – Kien Giang branch. The petitioner has made full payment.

6. Right to appeal: The petitioner is entitled to submit a written appeal within 15 (fifteenth) days from the day on which the judgment is pronounced (September 28, 2017) to the superior People's Court in order to request an appeals court.

The respondent may rightfully appeal the judgment within 1 month from the day on which this judgment is served or publicly notified as per law provisions.

7. In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements 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 Article 6, 7, 7a 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./