02/08/2022 09:46

Can a divorce be conducted when either party does not agree in Vietnam?

Can a divorce be conducted when either party does not agree in Vietnam?

Currently, divorce seems to have become a common phrase in daily life... When both husband and wife realize that the conflict has become serious, If the marriage's purpose is not achieved, they will agree to divorce to free each other and start a new life.

One of the common problems in solving divorce cases is: only one of the two wants to get a divorce, unilaterally filing a petition to court; and the other party still insists on not agreeing to divorce or not going to the court to carry out divorce procedures in accordance with the law. So, how will the court case be resolved?

Courts will usually have two different solutions, typically in the following two judgments:

First, the judgment 53/2018/HN-PT dated November 13, 2018 on divorce, according to which:

"Mr Nguyen Tan T asked for a divorce from Ms. Oanh E, but Ms. Oanh E did not agree to the divorce but wanted to heal with Mr. T.

The court found that: Mr. T could not prove the reason for applying for a divorce from Ms. Oanh E, while Ms. Oanh E mentioned solutions to overcome the problems that Mr. T considered to be the cause of the conflict. At that time, Oanh E had goodwill to heal and reunite husband and wife to take care of their children together. Besides, Mr. T and Ms. Oanh E live in different places, but still meet regularly on weekends, Mr. T is determined to divorce just because he thinks that the goodwill solution given by Ms. Oanh E is too late".

From the foregoing, the Trial Panel found that the conflict between Mr. T and Ms. Oanh E was not serious enough, it could be overcome, the husband and wife's reunification could be mended, their common life could be prolonged. Therefore, the Court did not accept Mr. T's request for divorce.

Second, the judgment 18/2017/HNGĐ-ST dated September 7, 2017 on marriage and family disputes is:

"Ms. Than Thi T and Mr. Nguyen Van N got married on October 31, 2000. In 2009, Ms. T went to work abroad, the first time, the couple kept in contact, but since 2011, they have not been in contact. Since Ms. T went to work in Cyprus and never returned home, husband and wife living apart do not care about each other.

Mr. N did not agree to divorce Ms. T because he determined that he still had feelings for Ms. T but did not provide any proof. Mr. N also stated that since 2011, Ms. T had not contacted her, he did not contact Ms. T. What do you have to do with each other?"

The trial panel found that the marital conflict between Ms. T and Mr. N had become serious, that life together could not be prolonged, and the purpose of marriage could not be achieved. It should be based on Article 51, Article 53 and Article 56 of the Law on Marriage and Family. Accepting the petition of Ms. Than Thi T, Trial for Than Thi T to divorce Mr. Nguyen Van N. 

Therefore, depending on the specific case of each couple, the court will consider and decide whether the conflict is really serious, and whether it is still possible to heal or not to accept the divorce request from one party.

According to the provisions of Clause 1, Article 51 of the Law on Marriage and Family, the husband, wife or both have the right to request the Court to settle the divorce. If either party does not agree to the divorce, the child has the right to apply for a unilateral divorce.

Article 51. The right to request settlement of divorce

1. Husband or wife or both has or have the right to request a court to settle their divorce.

2. A parent or another next of kin of a spouse has the right to request a court to settle a divorce when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.

3. A husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

This is also completely consistent with the provisions of the law on the principle of divorce settlement at the request of a party specified in Article 56 of the Law on Marriage and Family 2014 as follows:

Article 56. Divorce at the request of one spouse

1. When a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable.

2. When the spouse of a person who is declared missing by a court requests a divorce, the court shall permit the divorce.

3. For request for a divorce under Clause 2, Article 51 of this Law, a court shall permit the divorce if it has grounds to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.

Thereby, it can be seen that, not every case where only one party wants a divorce, the other party does not agree, they will not be divorced, but it will depend on the actual circumstances of each couple that the court considers and decides whether to settle the divorce or not.

Nguyen Sang

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