Judgment No. X/2017/DSST dated March 31, 2017 on marriage and family dispute

PEOPLE'S COURT OF HUNG YEN PROVINCE

JUDGMENT NO. X/2017/DSST DATED MARCH 31, 2017 ON MARRIAGE AND FAMILY DISPUTE

On March 31, 2017, at the office of People’s Court of Hung Yen Province, the first instance trial was conducted to hear the No. 10/2016/TLST–HNGD dated November 4, 2016 on marriage and family dispute

according to the Decision to Bring the Case to Trial No. 01/2017/QDST-HNGD dated February 16, 2017 between litigants:

1. Petitioner:  Mrs. Nguyen Thi Thu T, born in 1988. Parent’s hometown and current address: Do H Village, Quang V Commune, District A, Hung Yen Province. Registered permanent residence: Nhan L Village, Nguyen T Commune, District A, Hung Yen Province (present).

2. Respondent:  Mr. Le Dinh N, born in 1973. Parent’s hometown and registered permanent residence: Nhan L Village, Nguyen T Commune, District A, Hung Yen Province. He has worked in Korea and has resided illegally (absent).

3. Persons with related interests and obligations: + Mr. Le Cong T, born in 1944 and Mrs. Ngo Thi Q, born in 1943, who are parents of Mr. Nui. residing in: Nhan L Village, Nguyen T Commune, District A, Hung Yen Province (both present).

+ Le Thi Ngoc A, born on June 27, 2008, the common child of Mr. N and Mrs. T, living with Mr. Le Cong T and Mrs. Ngo Thi Q. Place of residence: Nhan L Village, Nguyen T Commune, District A, Hung Yen Province (present).

The legal representative of Le Thi Ngoc A: Mrs. Nguyen Thi Thu T, born in 1988, who is mother of Ngoc A.

THE CASE

Mrs. Nguyen Thi Thu T and Mr. Le Dinh N got married on voluntary basis. After a whirlwind courtship, they registered marriage at the People’s Committee of Nguyen T Commune on September 30, 2007 and held a wedding ceremony in accordance with the local traditional customs. After wedding, Mrs. T moved to Mr. N's house to live together with the family-in-law in Nhan L Village, Nguyen T Commune.

Mrs. T said that 2 days after the wedding day, Mr. N told her that he was preparing paperwork to work in Korea. It was the first time that he told her about that and she could not react if she wanted to, thus, she reluctantly accepted.  On November 1, 2007, Mr. N left Vietnam to work in Korea. The working period lasts 3 years and is extended for extra 2 years. During this time, Mrs. T got pregnant. Then, she gave birth to Le Thi Ngoc A on June 27, 2008. Early in the period that Mr. N has been away on business, they regularly kept in touch with each other and their emotional bond was still close. In April 4, 2010, Mr. N got 20 days’ leave to return home, after that, he went back to work and has stayed in Korea. Since then, he has never returned to visit his wife and daughter. Upon labor contract expiry, Mr. N did not return to Vietnam but quitted that job to find another job and has resided in Korea illegally, their marital bond became more distant, Mrs. T always took initiative in calling Mr. N and he hung up on her after a very short talk. Recently, he even blocked Mrs. T’s phone number or did not pick up his phone when she was calling. In terms of financial aspect, since Mr. N went abroad, he has never transferred money upon Mrs. T. Mr. N often transfers money to his younger sister Mrs. Le Thi H in Town A. Each month, Mrs. H gave Mrs. T a so-called subsistence of VND 2,000,000. Whenever Mrs. T incurs an expenditure, she must call Mr. N to ask him for permission, and then Mr. N will call his sister to give money to Mrs. T.  Mrs. T claims that she sees no future and happiness in the marital life between her and Mr. N; they do not have belief, attachment, and responsibility sharing and emotional bond with each other.  Therefore, she requests the Court to grant her a divorce from Mr. N.

After accepting the case, the Court served litigation papers to Mr. N through his family in hometown. Mr. N received those papers and consented to the divorce petition of Mrs. T in writing, and requested the Court to try the case in his absence.

Mr. Le Cong T and Mrs. Ngo Thi Q, Mr. N’s parents, both confirm the marriage time and life between Mr. N and Mrs. T as true as stated by Mrs. T. While Mr. N has been abroad, they are uncertain about how Mr. N and Mrs. T communicated with each other. Mr. N’s family also confirms that Mr. N’s monthly money transfer was as true as stated by Mrs. T. In addition, Mr. N also sent money to Mrs. T for her study, purchase of stuff and other expenses. Recently, Mrs. T has been picking quarrels with them for the purpose of breaking up with Mr. N. She has returned to her parent’s home since September 2016. When they received the notification of acceptance of the case sent to Mr. N by the Court, they notified Mr. N of such information. Mr. N consented to Mrs. T’s petition for divorce and he submitted his written deposition to the Court. However, because Mr. N has resided in Korea illegally, they could not provide Mr. N’s address. He still regularly communicates with the family via phone calls and the Internet. Mr. T and Mrs. Q also reach a consensus to the divorce and request the Court to grant them the divorce to free them from the marriage. Mr. T and Mrs. Q take responsibility for sending litigation papers to Mr. N.

With reference to common children: Mrs. T and Mr. N have a common child Le Thi Ngoc A, born on June 27, 2008. She sometimes lives with paternal grandparents, sometimes lives with her mother at the maternal grandparents’ house. According to statements of Ngoc A made while the Court was taking of evidence, she wants to live with her paternal grandparents. Although Mrs. T wishes to bring up the common child, she fulfils her daughter’s expectation and agrees to let the paternal grandparents to raise her daughter. Mr. N and Mr. T, Mrs. Q all request the Court to give custody of the daughter to Mr. M, while he has been abroad, Mr. T and Mrs. Q will take responsibility for bringing her up and voluntarily take no child support from Mrs. T.

With reference to property: Both Mrs. T and Mr. N confirm that they have no common property and do not borrow money from anyone, so the Court is not requested to settle.

At the court hearing: Mrs. T upholds the petition for divorce of Mr. N. Mrs. T requests the Court to award her the child custody and voluntarily not request Mr. N to provide child support. With reference to property, Mrs. T does not request the Court to settle. Mr. T and Mrs. Q request the Court to consider awarding Mr. N the child custody, they will take care of Ngoc A on behalf of Mr. N while he has been abroad and voluntarily not require Mrs. T to provide child support. Ngoc A does not express her expectation.

The representative of the People’s Procuracy of Hung Yen recognizes that the Judge, the Trial Panel and the Court reporter, during the petition settlement, from the case acceptance until the court hearing, have complied with law on procedures. The litigants have observed all of their procedural rights and obligations. In terms of the case, the People’s Procuracy requests the Court to apply Article 56, Article 81, Article 82 of the Law on Marriage and Family in Viet Nam to grant Mrs. Nguyen Thi Thu T and Mr. Le Dinh N a divorce. With reference to common children, Mrs. T is awarded the child custody of Ngoc A, and accepts Mrs. T’s voluntariness not to require Mr. N to provide child support.

JUDGEMENT OF THE COURT

[1] With reference to conjugal relationship: Mrs. T and Mr. N got married on voluntary basis, they registered marriage at the People’s Committee of Nguyen T Commune, District A. Therefore, their conjugal relationship between Mrs. T and Mr. N is legal. Now, Mrs. T filed a petition for divorce, the Law on Marriage and Family will apply to resolve the case under general procedures.

According to depositions of the litigants and written reply of Immigration Administration affiliated to the Ministry of Public Security, there are sufficient grounds to conclude that: Mr. N left Vietnam and has worked in Korea since November 1, 2007. In October 2010, Mr. N returned to Vietnam once and then went back to work in Korea, he has not re-entered Vietnam since then.

Currently, he has done business and resided illegally in Korea, so his specific address cannot be revealed to the Court. The Court sent litigation papers to him through his parents. Mr. N received the litigation papers of the Court and sent a written statement to the Court. The conclusion No. 113/PC54 dated March 28, 2017 of Forensic Science Department of Hung Yen Public Security shows that: The handwriting and signature of Mr. Le Dinh N in the Marriage Certificate (original), Curriculum Vitae (certified by the People’s Committee of Nguyen Trai Commune) and the handwriting and signature in the Request as to the case acceptance dated November 15, 2016 and the Request dated February 13, 2017 belong to the same person. Thus, documents sent by Mr. N to the Court are deemed as a source of evidence to resolve the case.

As for grounds for divorce, each party gives a different deposition. Mrs. T claims that their conflicts have arisen since Mr. N's labor contract expired and they gradually lost contact with each other. Most often, Mrs. T took initiative in calling Mr. N and he hung up on her after a very short talk. Recently, he even blocked Mrs. T’s phone number or did not pick up his phone when she was calling. In terms of financial aspect, since Mr. N went abroad, he has never transferred money upon Mrs. T. Mr. N often transfers money to his younger sister Mrs. Le Thi H in Town A. Each month, Mrs. H gave Mrs. T a so-called subsistence of VND 2,000,000. Whenever Mrs. T incurs an expenditure, she must call Mr. N to ask him for permission, and then Mr. N will call his sister to give money to Mrs. T.  Mr. N claims that: During the marital period, they often come into conflicts and up to now, they have no longer had strings attached. Mr. T and Mrs. Q state that: Recently, Mrs. T has been picking quarrels with them for the purpose of breaking up with Mr. N. She has returned to her parent’s home since September 2016. They also confirm that Mr. N’s monthly money transfer was as true as stated by Mrs. T. In addition, Mr. N also sent money to Mrs. T for her study, purchase of stuff and other expenses. Although it is impossible to verify grounds for conflicts raised by the parties, evidence all shows that Mrs. T and Mr. N have no longer had belief, attachment, responsibility sharing and emotional bond with each other. They have not wanted to keep living together so far. It is proved that their marital conflicts have been serious, the purpose of marriage is not achieved. Mr. N also consents to Mrs. T’s petition for divorce. Thus, granting Mrs. T and Mr. N a divorce is deemed accordant with Article 56 of the Law on Marriage and Family.

[2] With reference to common children: Mrs. T and Mr. N have a common child Le Thi Ngoc A, born on June 27, 2008. She sometimes lives with paternal grandparents Mr. Le Cong T and Mrs. Ngo Thi Q, sometimes lives with Mrs. T. Mrs. T, Mr. N, Mr. T, and Mrs. Q all expect to bring up Ngoc A. During the case resolution, Ngoc A expressed her expectation to live with her paternal grandparents. Thus, Mrs. T and Mr. T and Mrs. Q came to an arrangement that Mr. T and Mrs. Q will keep bringing up Ngoc A. At the court hearing, however, Mrs. T claims custody of her daughter with insistence. Mr. T and Mrs. Q also claim custody of Ngoc A, particularly Ngoc A does not express her wish. Clause 2, 3 Article 69 of the Law on Marriage and Family 2014 stipulates: Parents have obligations and rights to look after, raise, care for, and protect the lawful rights and interests of their minor children…to acts as the guardian of or represent their minor children. Clause 3 Article 70 of the Law on Marriage and Family 2014 stipulates: Minor children have rights to live with their parents, to be looked after and cared for by their parents. Clause 2 Article 81 of the Law on Marriage and Family 2014 stipulates: After a divorce, parents have rights to reach an agreement on the custodial parent…if they fail to reach such an agreement, the Court shall award a party the custody of the child taking account of the children’s benefits in all aspects. Clause 4 Article 84 of the Law on Marriage and Family 2014 stipulates: When deeming that both parents fail to meet sufficient conditions to have the physical custody of the child, a court shall decide to grant the child custody to a guardian in accordance with the Civil Code. Pursuant to above-mentioned provisions, because Mr. N have done business and lived in Korea, he does not meet the conditions to look after, care for and have the physical custody of the common child.  The arrangement made between Mrs. T and Mrs. Q is not conformable to the Law on Marriage and Family as stated above, so it is not accepted. Thus, it is advisable to grant Mrs. T the child custody to ensure the rights and obligations of the common child as well as parents’ rights and obligations as per the law. The Court also accepts Mrs. T’s voluntary consent not to require the child support from the Mr. N. Mr. N obtains the visitation rights with the child and the right to change the child custody after divorce as per the law.

[3] With reference to property: Both Mrs. T and Mr. N confirm that they have no common property and do not borrow money from anyone, so the Court is not requested to settle.

[4] With reference to court fee: Mrs. T has to pay the first instance civil court fee as per the law.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Article 56, Article 69, Article 70, Article 81, Article 82 of the Law on Marriage and Family 2014 and Point a Clause 1 Article 37; Clause 4 Article 147 of the Civil Procedure Code in Viet Nam. Clause 1 Article 48 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly on court fees.

1- With reference to conjugal relationship: grant Mrs. Nguyen Thi Thu T and Mr. Le Dinh N a divorce.

2- Common child: Award Mrs. T the custody of Le Thi Ngoc A, born on June 27, 2008 who is the common child of Mrs. T and Mr. T until Ngoc A reaches 18 years of age. The Court also accepts Mrs. T’s voluntary consent not to require the child support from the Mr. N. Mr. N obtains the visitation rights with the child and the right to change the child custody after divorce as per the law. Currently, Ngoc A has lived with her paternal grandparents (Mr. Le Cong T and Mrs. Ngo Thi Q). Mr. T and Mrs. Q have duties to comply with this decision.

3- With reference to property: Both Mrs. T and Mr. N confirm that they have no common property and do not borrow money from anyone, so the Court is not requested to settle.

4- With regard to court fees: Mrs. Nguyen Thi Thu T has to pay VND 200,000 of first instance divorce court fee, which is deducted from the paid advance according to the receipt No.0000056 dated November 3, 2016 of Department of Civil Judgment Enforcement of Hung Yen Province. Mrs. T paid the first instance divorce court fee in full.

5- With reference to right to appeal: Petitioner, respondent, persons with relevant rights and obligations have rights to appeal the Judgment within 15 days, the time limit for appeal applicable to those who are present at the court hearing commences from the pronouncement date, the time limit for appeal applicable to those who are absent from the court hearing commences from the date on which the Judgment is served or posted up as per the law on civil procedures.

In case the judgment 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 Article 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.