Judgment no.47/2017/HNGD-ST dated july 24, 2017 on divorce petition involving foreign elements

PEOPLE’S COURT OF KIEN GIANG PROVINCE

JUDGMENT NO.47/2017/HNGD-ST DATED JULY 24, 2017 ON DIVORCE PETITION INVOLVING FOREIGN ELEMENTS

The trial court was conducted at the office of People’s Court of Kien Giang province to hear the case No.09/2016/TLST-HNGD dated February 25, 2016 regarding “divorce petition involving foreign elements" according to the Decision to hear a case No.46/2017/QDST-HNGD dated July 05, 2017.
Parties concerned:

1. Petitioner: Mrs. Lam Thi Ng., born in 1980

Address: 624 neighborhood 2, VT ward, RG city, Kien Giang province (Present)

2. Respondent: Mr. Lam Steven V, born in 1971

Address: 6330 CAPE FORWARD DR HOUSTON TX 77083 – USA (Absent)

THE CASE OF MRS.LAM THI NG

Pursuant to the lawsuit complaint dated January 16, 2016 and the representation made at the trial by the petitioner:

Mrs. Ng/The wife and Mr. Lam Steven V/The husband knew each other through matchmaking in 2008 and started to live together in 2009. The couple registered their marriage at People's Committee of Kien Giang Province and was issued with marriage certificate No.277, book No.02 on December 04, 2009. After the marriage, the couple has lived together in the house of the wife's parents for a short time before the husband returned to America.  From 2009 to 2013, the husband only came to Vietnam to see the wife four times. The couple kept in touch with each other by phone. However, from 2014 until now, the husband has not visited the wife and she also failed to reach him over the phone. The wife deemed that the husband was no longer having feeling for her and if they were still separated by geographical distance, they would both stay in an unhappy marriage.  As for that reason, the wife petitioned a divorce from the husband.

In terms of common children and common properties and liabilities: No common child, property or liability is claimed 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 husband and to take his statements according to the address provided by the wife, which is  6330 CAPE FORWARD DR HOUSTON TX 77083 – USA in respect of the divorce petition by the wife as regulated by laws; however; the husband neither showed up to receive the notice nor gave any opinion on the wife’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 husband 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-husband, although the court has legitimately given the judicial entrustment to serve court papers to the husband, 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 husband is legally accepted.

In respect of the wife’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 jury is requested to accept the divorce petition of the wife.  There is no request for resolution as regards common children and common properties from the parties concerned so the court is not required to settle.

JUDGEMENT OF THE COURT

[1] In terms of court procedure: 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 husband as well as collect his statements as per regulations in 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 certain provisions of the Law on Legal Assistance regarding legal assistance on civil cases  The General Embassy of Vietnam in Houston, America also provided a record affirming that the Notice of Hearing had been served to the husband on March 17, 2017 as requested by the court but the husband 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 30 days.  As for that reason, pursuant to Point b Clause 1 Article 15 and 17 of Joint Circular No. 15/2011/TTLT-BTP-BNG- TANDTC in Viet Nam dated September 15, 2009 of the Ministry of Justice, Ministry of Foreign Affairs and Supreme People’s Court, and Article 477 of the 2015 Criminal Procedure Code, the jury decided to hear the case in the absence of the husband.

[2] In terms of conjugal relationship: Pursuant to Article 9 and 10 of Marriage and Family Law 2000 in Viet Nam and Article 8 and 9 of Marriage and Family Law 2014 in Viet Nam, it is claimed that the husband and the wife have entered into a legitimate marriage as they got to know each other and lived together voluntarily as well as registered their marriage according to the marriage certificate No.277, book No.2 dated December 04, 2009 at the People's Committee of Kien Giang province.  Any marriage is to aim at building a happy family in which the spouses share responsibilities to live together, love, care and help each other. Nevertheless, the marriage of parties concerned is unable to last long in that the couple has neither lived together nor seen each other on account of unfavorable conditions. Moreover, as the couple lost contact with each other since 2014 and their feelings of love has been faded, it is impossible for them to build a happy family. Considering the above-mentioned matters, the jury finds that the purpose of their marriage is not satisfied and the married life cannot last. Hence, the jury accepts the wife’s lawsuit petition and requests the representative of the Procuracy to grant the wife permission to divorce the husband as per provisions in Article 56 of Marriage and Family Law 2014.

[3] In terms of common children: The couple has no common child during the time living together so the court is not requested to settle.

[4] In terms of common properties and liabilities: There is neither request for settlement of common properties and liabilities from the wife nor opinion from the husband so the court is not required to review.

[5] In terms of court costs: The court cost shall be paid under provisions in Clause 2 Article 147 of the Civil Procedure Code in Viet Nam, Article 48 of Resolution No.326/2016/UBTVQH14 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 dated February 27, 2009 on court costs and fees.

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

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to 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 in Viet Nam 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-the wife.

1. With reference to conjugal relationship: The wife is judged to lawfully divorce the husband.

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

3. With reference to common properties and liabilities: Neither request from the wife nor opinion from the husband is received so the court is not petitioned to review.

4. With reference to court costs: The first-instance civil court cost of VND 200,000 shall be legitimately paid by the wife; it shall be deducted from the first-instance court cost paid in advance according to the court cost and fee payment receipt No.0004867 dated February 17, 2016 issued by the Enforcements of civil judgment Department of Kien Giang province. 

5. Rights of appeal: The wife is entitled to submit a written appeal within 15 (fifteenth) days from the day on which the judgment is pronounced (July 24, 2017) to the superior People's Court in order to request an appeals court.

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

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