Judgment No. 89/2018/HNGD-ST dated June 26, 2018 on divorce dispute

PEOPLE’S COURT OF HANOI CITY

JUDGMENT NO. 89/2018/HNGD-ST DATED JUNE 26, 2018 ON DIVORCE DISPUTE  

On June 26, 2018, the first instance trial court is conducted at the office of People’s Court of Hanoi City to hear the case No. 69/2017/TLST-HNGD dated April 19, 2017 regarding divorce dispute according to the Decision to Bring the Case to Trial No. 148/2018/QDXXST-HNGD dated June 13, 2018 between the following litigants:

1. Petitioner:  Mr. Nguyen Khac A, born in 1967; residing at: 14, 255/7 Nguyen Khang, Yen Hoa Ward, Cau Giay District, Hanoi.

2. Respondent:  Mrs. Tham Thi Thu N, born in 1971; passport No. C0892673, issued by Immigration Department on October 21, 2015; having worked and resided in: Korea; currently in Vietnam, residing at:  14, 255/7 Nguyen Khang, Yen Hoa Ward, Cau Giay District, Hanoi.

THE CASE

Representation of the petitioner Mr. Nguyen Khac A in the Petition for Divorce and depositions at the court hearing: Mrs. Tham Thi Thu N and he voluntarily entered into a marriage and obtain a certificate of marriage certification dated September 14, 1995 issued by the People’s Committee of Yen Hoa Commune, Tu Liem District (now is Yen Hoa Ward, Cau Giay District), Hanoi City. After that, they lived in a house on the land given by Mr. A’s parents; they had lived a happy marriage before conflicts arise due to divergence of personalities and opinions.  Mr. A claims that Mrs. N has gone abroad multiple times without a consensus between them, Mrs. N failed to fulfill a wife’s responsibility. In 2016, Mrs. N went on a business trip to Korea but Mr. Anh did not know about that. Since then, they have no longer taken care of each other, he had to contact Mrs. N’s workplace to know that Mrs. N went on a business trip to Korea but he cannot contact with her; he stayed home alone taking care of old parents and the child Nguyen Tham BA, who was born in 2006, but Mrs. N did care about that child. He asserts that their feelings of love has been faded, so he filed a petition for divorce from Mrs. N.    

- With reference to common children: In the petition for divorce, Mr. Nguyen Khac A presents: They have 2 common children. The oldest child Nguyen Tham Bao Trang, born on September 21, 1996, who is mature, does not make any claim. The younger child Nguyen Tham BA, born on December 25, 2006, has stayed with him. Upon divorce, he claims custody of Bao Anh, and does not request Mrs. N to provide a child support. However, during the reconciliation, Mr. A agreed to concede the custody of children to Mrs. N and provide monthly child support of VND 2 million because his monthly income is only VND 9 million and he has to take care of decrepit parents and himself.

- With reference to common property: Mr. Nguyen Khac A claims that their common property only include household appliances worth not too much and does not request the Court to settle it.

- With reference to common liability: they do not either owe or lend any sum of money, so the Court is not requested to settle it.

- With reference to house and land: The class IV house of 51.5m2 on the land of 78.6m2 in the Group 33, Yen Hoa Ward, Cau Giay District, Hanoi is the private property that he was given, so he does not request the Court to settle it.

Representation of the respondent, Mrs. Tham Thi Thu N: She asserts that their marriage period and conditions are as the same as declared by Mr. A. She determined that in their marriage life, they also have minor conflicts which have not been resolved in time, have no suitable conditions to have an open talk, difficult to talk and share with each other. She also asserts that they had lived separately for 6 months before she went on a business trip to Korea, so she did not notify Mr. A of her trip, since then, they lost touch with each other. Now, she returned to and stayed permanently in Vietnam so she refuses the divorce. If the court grants them a divorce, she claims custody of Nguyen Tham BA, born on December 25, 2006 and she and two children have to be guaranteed an accommodation because she and Mr. A have a house of 51.5m2 on the land of 78.6m2 in Group 33, Yen Hoa Ward, Cau Giay District, Hanoi.

During the lawsuit settlement, the Court executes judicial request as per the law to Mrs. Tham Thi Thu N at her address in Korean through Vietnam’s Embassy in Korea but no reply was received. However, before the meeting to publish evidence and achieve reconciliation, Mrs. N returned to Vietnam and participate in the legal proceedings.

At the court hearing today, Mr. Nguyen Khac A retains his petition for divorce from Mrs. Tham Thi Thu N, once the divorce is granted, he agreed to concede the custody of Nguyen Tham BA, born on December 25, 2006 to Mrs. N, and he voluntarily provides a monthly child support of VND 2 million until she attains the age of majority and does not request the settlement of common liability and property, and house and land, because the house and land was particularly given to him in 2009.

Mrs. Tham Thi Thu N determines that there were minor conflicts between them that cause silence between them for a period of time, so she did not inform Mr. A of her study abroad. While she was staying abroad, although she did not contact with Mr. A but she perceived the importance of the family; they both are not young anymore so she wishes to repair their broken marriage, that was the reason that urged her to return to Vietnam. However, if Mr. A determinedly wants a divorce, she will give her consent to it. With reference to common children, she claims custody of Nguyen Tham BA, born on December 25, 2006 and does not require a child support from Mr. A. Once the divorce is granted, she claims an accommodation because she has played the wife role and stayed in the current house for 23 years, she asserts her contribution to the house construction of VND 50 million to 60 million; regarding the land in the name of Mr. A, she claims that her parents-in-law gave it to both of them, although she agreed to let Mr. A bear his name in the certificate of land use right and property on land alone. With regard to common household appliances worth not much, she does not request the Court to settle them.

The representative of the People’s Procuracy of Hanoi City expresses opinions as follows:

The Court has accepted the case and executed judicial requests intra vires and within the trial preparation time limit; the Trial Panel and litigants have complied with legal proceedings.

With reference to the content of the case: At the court hearing, Mrs. N claims her contribution to the repairing of the house in 1999 of VND 50 million to 60 million to ensure her interests. The People’s Procuracy requests the Trial Panel to suspend the trial for valuation of her contribution in order to resolve the case comprehensively.

JUDGEMENT OF THE COURT

After considering documents and evidence available in the case file which have been examined at the court hearing and depositions of litigants and opinions of the procurator. The trial panel has substantial grounds for determining that:

[1] In terms of court procedures:

[1.1] Mr. Nguyen Khac A filed a petition for divorce from Mrs. Tham Thi Thu N with the People’s Court of Hanoi City while Mrs. H was staying and studying in Korean according to the Decision No. 651/QD-CNSH dated December 15, 2015 of Biotechnology Institute on sending officials to study abroad issued by her employer. People’s Court of Hanoi City has issued a dispatch for verification; in the dispatch No. 3366/A72-P4, Immigration Department affiliated to the Ministry of Public Security replies that Mrs. N’s last exit was March 20, 2016 through the Noi Bai international checkpoint using the passport number C0892673 and had not entered Vietnam at that time. Therefore, the jurisdiction of the case falls under People’s Court of Hanoi City. The Court executed judicial requests in terms of notification of the case acceptance and scheduled meeting to publish evidence and achieve reconciliation, and scheduled first instance court hearing. The Vietnam’s Embassy in Korea followed statutory procedures but no reply was received. Now, Mrs. N came back to Vietnam to participate in the legal proceedings to keep settling the case.

[1.2] In the written deposition and the record of meeting to publish and access evidence and achieve reconciliation dated April 27, 2018, Mrs. Tham Thi Thu N expressed her refusal to the divorce; if the divorce was granted, she claimed custody of Nguyen Tham BA, born on December 25, 2006 and requested division of house and land at 14, Alley 255/7, Nguyen Khang, Yen Hoa, Cau Giay, Hanoi (household register is Group 33, Yen Hoa Ward, Cau Giay District, Hanoi). The Court has issued the document No. 28/TB-TA dated May 18, 2018 to notify and fix the time limit for submitting evidence as to the claim for division of marital property in the case of Mrs. Tham Thi Thu N. Although Mrs. N received such a document, she failed to submit evidence as required in the claim. Therefore, pursuant to Clause 1 Article 96 of the Civil Procedure Code in Viet Nam, the court keeps hearing and reserve Mrs. N’s right to bring the claim for division of marital property and accommodation in another case upon her request.

[2] With reference to conjugal relationship: Mr. Nguyen Khac A and Mrs. Tham Thi Thu N voluntarily entered into a marriage and obtain a certificate of marriage certification dated September 14, 1995 issued by the People’s Committee of Yen Hoa Commune, Tu Liem District (now is Yen Hoa Ward, Cau Giay District), Hanoi City. This is a legal marriage. While living together, they both admits that some conflicts have occurred. Mr. A claims that Mrs. N and he have divergence of personalities and opinions and Mrs. N failed to fulfill her roles of a daughter-in-law and a wife. She has gone abroad multiple times without discussion with him, did not take care of children well, their conflicts become serious. Since their separation in 2016, he lost touch with Mrs. N, he had to come to her workplace to know that she was sent to Korea to study, but then he still cannot contact with her, Mrs. N also did not contact with him or their child although Nguyen Tham BA, at that time, was only 10 years old and was staying with him. He considers that their marriage is irretrievably broken, so he is still determined to seek a divorce.

Mrs. Tham Thi Thu N only admits that they only have had minor conflicts and have not had suitable conditions to have an open talk to repair their broken marriage. Mrs. N admits that before she went to Korea (since March 2016), they had separated for 3 to 6 months. Since her arrival in Korea, she has not contacted with Mr. A. The Trial Panel considers that Mrs. N did not try to repair her broken marriage because after conflicts between her and Mr. A, she neither notified Mr. A of her trip abroad nor contacted with the family during that time. It is a long time from 2016 up to now, but they both have no goodwill to repair their broken marriage; their marriage life together in fact no longer exists. At the court hearing, Mrs. Tham Thi Thu N determines that Mr. Nguyen Khac A is determined to seek a divorce, thus, she agrees to get a divorce. This is an amicable divorce between litigants which should be recognized.

[3] With reference to common children: They have 2 common children, the oldest child Nguyen Tham Bao Trang, born on September 21, 1996, who is mature and has studied in Australia, and they both do not request the Court to settle. Regarding the younger child Nguyen Tham BA, born on December 25, 2006.

If the divorce is granted, Mrs. N wishes to have custody of Bao Nah, Mr. A agrees and voluntarily provides monthly child support of VND 2 million for Bao Anh until she attains her age of 18. Mrs. N does not require Mr. A to provide the child support. Considering that their agreement concerning child custody is made voluntarily, such agreement should be recognized. Mr. Nguyen Khac A’s wish to provide child custody is voluntary and in accordance with laws and regulations, so such voluntariness should be recognized and exempt from the court fee.

[3] With reference to common property:

[3.1] Household appliances are not requested by the litigants, thus, the Court does not consider them further.

[3.2] Regarding house and land at 14, Alley 255/7, Nguyen Khang, Yen Hoa, Cau Giay, Hanoi (Group 33, Yen Hoa Ward). Mr. Nguyen Khac A presented a Property Giving Contract No. 081009, notarized on January 12, 2009 at the Viet Notary Office, Hanoi, showing that Mr. Nguyen Khac A’s parents gave the class IV house of 30m2 on the land of 78.6m2 at this address. In the written deposition and the record of meeting to publish and access evidence and achieve reconciliation dated April 27, 2018, Mrs. Tham Thi Thu N requested division of house and land at 14, Alley 255/7, Nguyen Khang, Yen Hoa, Cau Giay, Hanoi (household register is Group 33, Yen Hoa Ward, Cau Giay District, Hanoi). The Court has issued the document No. 28/TB-TA dated May 18, 2018 to notify and fix the time limit for submitting evidence as to the claim for division of marital property in the case of Mrs. Tham Thi Thu N. Although Mrs. N received such a document, she failed to submit evidence as required in the claim.  Therefore, the Court has no basis to issue a notice of submission of advanced court fee as to such a request and follow procedures to deal with the request as prescribed.

At the court hearing, Mrs. N does not request division of house and land but only requests the Court to resolve her accommodation and her contribution of about VND 50 to 60 million to the house repair since 1999. Mr. Nguyen Khac A confirms that the housing repair cost in 1999 was VND 60 million and voluntarily returns her VND 30 million, but Mrs. N claims that it is not enough so she refuses it. Therefore, the Trial Panel has no basis to recognize the agreement between litigants. Because Mr. Nguyen Khac A does not request settlement of common property and house, so the Trial Panel will not settle it and reserve the litigants’ right to bring another case to trial.

[4] With reference to common liability: The litigants claim no common liability and do not request the Court to settle.

[5] With reference to court fee: Mr. A has to pay VND 300,000 of first instance divorce court fee; deducted from the advanced fee of VND 300,000 in the receipt No. 0001692 dated March 24, 2017 and VND 200,000 of advanced judicial assistance fee in the receipt No. 0002656 dated March 24, 2017 of the Department of Civil Judgment Enforcement of Hanoi. The litigants have fully paid the court fees.

The litigants have right to appeal the Judgment as prescribed.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

- Pursuant to Clause 1 Article 28 , Articles 37, Clause 1 Article 96; Article 464, 469, 266, 271, 273 of the Civil Procedure Code;

- Pursuant to Articles 51, 55, 56, 57, 58, 81, 82, 83 of the Law on Marriage and Family 2014 in Viet Nam;

- Pursuant to 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:

1. Recognize the amicable divorce between Mr. Nguyen Khac A and Mrs. Tham Thi Thu N.

2. With reference to common children: Recognize the agreement between Mr. Nguyen Khac A and Mrs. Tham Thi Thu N to award custody of Nguyen Tham BA, born on November 9, 2002 to Mrs. N until she attains her age of 18.

Recognize Mr. Nguyen Khac A’s voluntariness to provide monthly child support of 2 million until she attains her age of 18 or any other changes.

Mr. Nguyen Khac A obtains a visitation rights with the child, no one can obstruct his right.

3. With reference to common property: none, so the court is not requested to settle. Reserve Mr. Nguyen Khac A and Mrs. Tham Thi Thu N’s right to bring another case as to this matter.

4. With reference to common liability: none, so the court is not requested to settle.

5. With reference to court fees: Mr. A has to pay VND 300,000 of first instance divorce court fee; deducted from the advanced fee of VND 300,000 in the receipt No. 0001692 dated March 24, 2017 and VND 200,000 of advanced judicial assistance fee in the receipt No. 0002656 dated March 24, 2017 of the Department of Civil Judgment Enforcement of Hanoi. The litigants have fully paid the court fees.

The first instance trial is publicly heard with the presence of Mr. Nguyen Khac A and Mrs. Tham Thi Thu N. Mr. Nguyen Khac A and this Circular have the right to appeal the Judgment within 15 days from the date of pronouncement.