Divorce settlement process when one party loses civil act capacity in Vietnam

Typically, at the Judgment 06/2019/HNGĐ-ST dated January 24, 2019 of the People's Court of Thuan An town, Binh Duong province, the first instance trial on divorce and child custody dispute between Mrs. Mr. Truong Tan B.

Ms. Nguyen Ngoc B married Mr. Truong Tan B on a voluntary basis, with marriage registration. Mr. Truong Tan B was ill and his brain was damaged, his walking and standing were not clear. The People's Court of T town issued judgment No. 10/2018/QDDS-ST declaring that Mr. Truong Tan B lost his civil act capacity. Ms. Nguyen Ngoc B filed a lawsuit to request a divorce from Mr. Truong Tan B for the reason: Mr. Truong Tan B lost his civil act capacity, so the relationship between husband and wife no longer exists.

The People's Court of Thuan An town has accepted the entire petition of Ms. Nguyen Ngoc B against Mr. Truong Tan B. Ms. Nguyen Ngoc B is entitled to divorce from Mr. Truong Tan B.

Compared with the provisions of the law on marriage and family in Article 24, specifically:

Article 24. Bases for determination of representation between husband and wife

1. The representation between husband and wife in establishing, making and terminating transactions shall be determined in accordance with this Law, the Civil Code and other relevant laws.

2. Husband and wife may authorize each other to establish, make or terminate transactions which, as prescribed by this Law, the Civil Code and other relevant laws, shall be agreed upon by both spouses.

3. A spouse may represent the other when the latter loses his/her civil act capacity while the former is eligible to act as the guardian or when the latter has his/her civil act capacity restricted while the former is designated by a court to act as the at-law representative of his her spouse, unless the latter is required by law to perform by himself/herself related rights and obligations.

When a spouse loses his/her civil act capacity and the other requests a court to settle divorce, the court shall designate another person to represent the partner who has lost his/her civil act capacity for settlement of divorce in accordance with the Civil Code’s provisions on guardianship.

Clause 3, Article 24 of the Law on Marriage and Family 2014 provides as follows:

“…In the event that one spouse loses the civil act capacity and the other party requests the Court to settle the divorce, the Court shall appoint another person according to the provisions on guardianship in the Civil Code of Vietnam, The court appoints another person to represent the incapacitated person to settle the divorce.

The Court's appointment of a representative is specified in Clause 1, Article 88 of the Civil Procedure Code 2015: “During the conduct of civil procedures, if any involved party is a person with restricted civil act capacity, If they do not have a representative or their legal representative falls into one of the cases specified in Clause 1, Article 87 of this Code, the court must appoint a representative to participate in the court proceedings". Therefore, the person acting on behalf of the defendant to participate in the divorce settlement in this case is decided by the court.

Normally, husband and wife represent each other when one party loses civil act capacity. But in divorce, the spouse cannot represent the other party when the other is incapacitated for civil acts, because it may affect their rights and interests. When there is an application for divorce, the Court will appoint a representative.

Therefore, when one party loses civil act capacity, the other can still ask the Court for a divorce. However, in case the Court has not yet issued a decision declaring the loss of capacity to act, the plaintiff must first carry out procedures to request the Court to declare the defendant to be a person who has lost his/her civil act capacity. Only then will the divorce petition be submitted to the competent court for settlement.

The difference between a divorce case and a person who has lost civil act capacity is that after accepting the case, the court will proceed to bring the case to trial without going through the conciliation procedures like normal divorce cases. according to Clause 3, Article 207 of the Civil Code.

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