Judgment no. 98/2017/HNGD-ST dated september 11, 2017 on divorce and dispute over child custody

THE PEOPLE’S COURT OF HAI PHONG CITY

JUDGMENT NO. 98/2017/HNGD-ST DATED SEPTEMBER 11, 2017 ON DIVORCE AND DISPUTE OVER CHILD CUSTODY

On September 11, 2017, the trial court was conducted at the office of the People’s Court of Hai Phong City to hear the handled case No. 45/2016/TLST-HNGD dated April 27, 2016 regarding divorce and dispute over the child custody pursuant to the Decision to bring the case to the trial No. 352/2017/QDXXST-HNGD dated March 14, 2017 and the Notice of change of the court date No. 750/TB-TA dated May 19, 2017, between the following concerned parties:

1. Petitioner: Mrs. Nguyen A, born in 1989, address: Group 1, Da Bac hamlet, Gia Minh commune, Thuy Nguyen district, Hai Phong city; present.

2. Respondent: DEOK, born in 1967; address: No. 515-14 Deung Chon 2 Dong, Gang Seo-Gu, Seoul, Korea; absent.

Persons defending legitimate rights and interests of the respondent: Mr. Nguyen Dang Khoa and Mr. Nguyen The A of A Dong Lawyers’ Office affiliated to Hai Phong City Bar Association. (Mr. Khoa is present and Mr. The A is absent)

CONTENTS OF THE CASE

According to the petition for divorce and testimonies give at the Court by the petitioner, Mrs. Nguyen A stated: She and DEOK have voluntarily got married, carried out procedures for registration of their marriage and have their marriage recorded in the Record of civil status affairs registered at foreign competent authorities at the Department of Justice of Hai Phong City on October 02, 2009. After getting married, DEOK has sponsored Mrs. A to immigrate to Korea for family reunion. They happily lived together for the initial period of their married life and have a child, namely AN MINSOO, born on August 09, 2010. Then, marital conflicts occurred because of their difference in points of view in life and characters negatively influencing their affection for each other. Now, she files a petition for divorce from DEOK because she finds that she no longer loves him.

- Regarding the child of this marriage: They have a child, namely AN MINSOO, born on August 09, 2010. She wishes to take the child custody until this child reaches adulthood without requesting DEOK to pay the child support after divorce.

- Regarding conjugal property: They do not have the conjugal property, so she does not request the Court to make judgment on this matter.

After receiving the case for handling, the People's Court of Hai Phong City has made the written request for judicial assistance No. 797/UTTPDS-TA dated May 30, 2016 requesting competent authorities in Korea to provide judicial assistance in sending the notice of handling of the case to DEOK, taking his statements, and providing him with the scheduled reconciliation and court dates.

On December 14, 2016, the People's Court of Hai Phong City has received DEOK’s answers to the petition for divorce as follows:

Regarding marital relationship: He rejects the request for divorce of Mrs. Nguyen A but he will agree to get divorced if Mrs. A insists on doing so.

Regarding the child of this marriage: He asks for the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010 without requesting Mrs. A to pay the child support. In case the People’s Court of Hai Phong City decides to give the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to Mrs. Nguyen A, he will provide the child support of USD 300 per month provided that Mrs. Nguyen A must prove that this amount of money will be spent on the child, AN MINSOO.

Regarding conjugal property: They do not have the conjugal property, so he does not request the Court to make judgment on this matter. DEOK also requests the People’s Court of Hai Phong City to change the scheduled court date so that he can attend the court hearing.

After receiving response from DEOK, the People’s Court of Hai Phong City has opened a session to inspect the received evidences, carried out reconciliation and changed the court date.

At the reconciliation record dated December 26, 2016, the petitioner, Mrs. Nguyen A still keeps her requests for divorce and the conjugal property unchanged, and requests the Court to give the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to her without requesting DEOK to pay the child support. DEOK and persons defending his legitimate rights and interests jointly stated: DEOK refuses to get the divorce; he asks for the custody of the child of this marriage, namely AN MINSOO; he confirms that they have no conjugal property and does not request the Court to make judgment on this matter.

At this court hearing, Mrs. Nguyen A states: She keeps her opinions about their marriage and reasons for getting a divorce unchanged. She requests the Court to accept her petition for divorce from DEOK.

- Regarding the child of this marriage: She changes her request stated in the petition regarding this matter. She requests the People’s Court of Hai Phong City to award the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to DEOK until this child reaches adulthood.

- Regarding conjugal property: They do not have the conjugal property, so he does not request the Court to make judgment on this matter.

The person defending legitimate rights and interests of the respondent, DEOK, states: On May 29, 2017, DEOK has provided his opinions about the case to the People's Court of Hai Phong City as follows:

- Regarding marital relationship: He requests the Court to accept the petition for divorce filed by Mrs. Nguyen A and requests the Court to allow him to get divorce from Mrs. Nguyen A.

- Regarding the child of this marriage: He requests the Court to give the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to him without requesting Mrs. A to pay the child support.

- Regarding conjugal property: They do not have the conjugal property, so he does not request the Court to make judgment on this matter.

He also requests the People's Court of Hai Phong City to hear the case in his absence. He shall neither make complaints against the Court’s judgments or decisions on his divorce from Mrs. A and the child custody nor appeal against the judgment of the People’s Court of Hai Phong City. The representative of the People’s Procuracy of Hai Phong City expresses the opinions about the case as follows:

- Regarding the court procedures: During the resolution of this case, the Judge, the Jury and participants in legal proceedings have complied with regulations laid down in the Civil Procedure Code.

- Regarding the case matters: Deeming that: Marital conflicts occurred during the conjugal life of Mrs. Nguyen A and DEOK because of their difference in points of view towards things in life. They have separately lived since 2015; they have neither cared for nor supported each other in life. There are serious problems in their marriage, they are unable to live together and purposes of marriage could not be achieved, thus the petition for divorce of Mrs. A should be accepted.

Pursuant to Clause 1 Article 28, Clause 3 Article 35, point a Clause 1 Article 37, Clause 4 Article 147, Point d Clause 1 Article 469, Point a Clause 5 Article 477, Article 479 of the Civil Procedure Code in Viet Nam; Article 48 of the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly; the Ordinance on court fees and charges in 2009; Article 51, Clause 1 Article 56, Article 81-83, Article 127 of the Law on marriage and family in 2014 in Viet Nam, the petitioner’s petition for divorce should be accepted, and it should be judged as follows:

- Mrs. Nguyen A is allowed to get divorce from DEOK.

-Regarding the child of this marriage: The custody of An Minsoo, born on August 09, 2010, is awarded to DEOK. Because DEOK does not request Mrs. A to pay the child support, this matter is not considered. The non-custodian parent shall have the rights and obligations to care for, nurse and educate the child of the marriage, and nobody can prevent that non-custodian parent from performing these rights and obligations.

- Regarding conjugal property: They do not have the conjugal property and do not request the Court to make judgment on this matter.

- Regarding the court fees: Mrs. A is liable to pay VND 200,000 of the first-instance civil court fees. The petitioner, Mrs. A, must also pay the costs of requesting judicial assistance abroad in accordance with Clause 3 Article 153 of the Civil Procedure Code.

-Regarding the rights to appeal against the judgment: DEOK who is absent shall be entitled to appeal against the judgment within 01 month from the day on which this judgment is served or lawfully posted. Mrs. Nguyen A is entitled to appeal against the judgment within 15 days from the date of judgment announcement.

JUDGMENT OF THE COURT

 [1] Regarding the court procedures: Mrs. Nguyen A and DEOK both request the People's Court of Hai Phong City to handle their divorce case. Pursuant to Clause 3 Article 35 and Point b Clause 1 Article 39 of the Civil Procedure Code, the People's Court of Hai Phong City has the jurisdiction over this divorce case.

The respondent is residing in Korea and absent from the court hearing with an application for default judgment submitted. The People's Court of Hai Phong City hears the case in absence of the respondent in accordance with Clause 1 Article 228 of the Civil Procedure Code.

[2] Regarding marital relationship: Mrs. Nguyen A and DEOK have voluntarily got married, carried out procedures for registration of their marriage and have their marriage recorded in the Record of civil status affairs registered at foreign competent authorities at the Department of Justice of Hai Phong City on October 02, 2009, so this is legal marital relationship as defined in Article 8 and Article 9 of the Law on marriage and family in 2014.

After getting married, they have lived in Vietnam for several days, and then DEOK have sponsored Mrs. A to immigrate to Korea for family reunion but their affection for each other have been glacial because of their difference in points of view in life and lifestyle. Now, Mrs. Nguyen A and DEOK both confirm they no long love each other and petition for divorce. Whereas, the purposes of marriage could not be achieved in the marital relationship between Mrs. Nguyen A and DEOK and their conjugal life should end, the petition for divorce of Mrs. Nguyen A should be accepted in accordance with Article 51 and Article 56 of the Law on marriage and family in 2014.

[3] For the child of this marriage: Mrs. Nguyen A and DEOK both request the Court to give the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to DEOK until this child reaches adulthood.

Both Mrs. A and DEOK are obliged to nurse and care for the child of this marriage but they have voluntarily reached an agreement that the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, to DEOK until this child reaches adulthood. Thus, the agreement made between Mrs. A and DEOK should be accepted and the custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, should be awarded to DEOK until this child reaches adulthood or otherwise requested by the parties in accordance with Article 81 and Article 82 of the Law on marriage and family in 2014. Nobody can prevent the exercise of the right to visit and care for the child of this marriage.

[4] For the conjugal property: Because they do not have the conjugal property and do not request the Court to make judgment on this matter, the Jury does not consider this matter.

[5] For the first-instance civil court fees and judicial assistance costs: Mrs. Nguyen A is the petitioner, so she must pay the first-instance court fees and judicial assistance costs in accordance with applicable laws.

[6] Regarding the rights to appeal against the judgment: Mrs. Nguyen A and DEOK are entitled to appeal against this judgment in accordance with applicable laws.

For the said reasons,

THE COURT DECIDES

Pursuant to Article 51, Clause 1 Article 56, Article 81, Article 82 of the Law on marriage and family in 2014;

Pursuant to Clause 3 Article 35, Point b Clause 1 Article 37, Point b Clause 1 Article 39, Clause 4 Article 147, Article 207, Clause 1 Article 227, Clause 1 Article 228, Article 273, Article 479 of the Civil Procedure Code; Pursuant to Article 27 of the Ordinance No. 10/2009/UBTVQH12 in Viet Nam dated February 27, 2009 by the 12^th session of the Standing Committee of the National Assembly on the law fees and charges;

- Pursuant to Article 48 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, collection, exemption, reduction, transfer, management and use thereof;

To judge that:

1. Regarding marital relationship: Mrs. Nguyen A is allowed to get divorce from DEOK.

2. Regarding the child of this marriage: The custody of the child of this marriage, namely AN MINSOO, born on August 09, 2010, is awarded to DEOK until this child reaches adulthood or otherwise requested by the parties. Nobody can prevent the exercise of the rights to visit and care for the child of this marriage.

3. Regarding conjugal property: Because they do not have the conjugal property and do not request the Court to make judgment on this matter, the Jury does not consider this matter.

4. Regarding the first-instance civil court fees: Mrs. Nguyen A must pay VND 200,000 (two hundred thousand) of the first-instance civil court fees. This amount is deducted from the first-instance civil court fees of VND 200,000 temporarily paid under the Receipt No. 0008674 dated April 27, 2016 at the Department of Civil Judgment Enforcement of Hai Phong City. Thus, Mrs. Nguyen A has fully paid the first-instance civil court fees.

Regarding the judicial entrustment costs: Mrs. Nguyen A must pay VND 150,000 (One hundred and fifty thousand) of the costs of request for judicial assistance. This amount is deducted from the judicial assistance amounts of VND 150,000 temporarily paid under the Receipt No. 0008468 dated May 26, 2016 at the Department of Civil Judgment Enforcement of Hai Phong City. Thus, Mrs. Nguyen A has fully paid the judicial assistance costs.

5. Regarding the rights to appeal against the judgment:

+ DEOK is entitled to appeal against the judgment within 01 month from the day on which this judgment is served.

+ Mrs. Nguyen A is entitled to appeal against the judgment within 15 days from the date of judgment announcement.

In case the court’s judgment or decision 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./.