If a spouse is missing, is it permissible for the other to request for a divorce according to the law in Vietnam? What are judgments related to this issue?

1. If a spouse is missing, is it permissible for the other to request for a divorce according to the law in Vietnam?

According to Article 68 of the Civil Code 2015 of Vietnam regarding the declaration of missing persons:

- When a person has been absent for two consecutive years or more, despite having taken all the necessary measures to notify and search in accordance with civil procedure law, but there is still no accurate information about whether the person is alive or dead, the court may declare that person missing at the request of an interested party.

The two-year period is calculated from the date the last news of that person is known; if the exact date of the last news cannot be determined, this period is calculated from the first day of the following month after the last news; if the date and month of the last news cannot be determined, the period is calculated from the first day of the following year after the last news.

- In the case where the spouse of the person declared missing applies for a divorce, the court will grant the divorce in accordance with marriage and family law.

- The court's decision declaring a person missing must be sent to the People's Committee of the commune where the missing person last resided to note in accordance with civil status law.

Additionally, Clause 2, Article 56 of the Law on Marriage and Family 2014 of Vietnam stipulates the following regarding unilateral divorce:

Divorce at the request of one party

...

2. In the case where the spouse of the person declared missing by the court requests a divorce, the court will grant the divorce.

Thus, according to Vietnamese law, the court will grant a divorce if the spouse of the person declared missing requests a divorce.

To declare a person missing, that person must have been absent for two continuous years or more, and all measures to search them, as required by law, must have been exhausted. The decision to declare a person missing must be sent to the commune-level People's Committee where the missing person last resided to note in accordance with civil status regulations.

2. What are court judgments regarding divorce with missing persons in Vietnam?

Below are some court judgments regarding divorce with missing persons that have been resolved by the courts in Vietnam:

Judgment on divorce with a missing person No. 15/2021/HNGD-ST

- Adjudicating authority: People's Court of Chau Duc District, Ba Ria-Vung Tau Province.

- Excerpt from content: “In the petition and during the resolution process, the petitioner, Ms. Le Thi Tuyet Th, stated: After three years of getting to know each other, Ms. Th and Mr. Vo Dinh D married. The marriage was voluntary, with a wedding ceremony and marriage registration on February 11, 2015. In April 2016, Ms. Th and Mr. D started living separately. From August 2016, Mr. D left the locality, and Ms. Th did not know the reason. After searching and contacting but still not knowing any news, Ms. Th submitted a petition requesting the court to declare Mr. D missing."

Judgment on divorce with a missing person No. 07/2019/HNGD-ST

- Adjudicating authority: People's Court of Thai Hoa District-level Town, Nghe An Province.

- Excerpt from content: “Ms. H and Mr. V married on March 11, 1998, with marriage registration, and the marriage was established on the basis of equality and voluntariness. After marriage, the couple lived happily and had two children. However, in 2010, due to financial difficulties, Ms. H had to work overseas (in Malaysia). When she returned in October 2013, Mr. V had left home without a trace. Ms. H and both sides of the family tried to search everywhere without any result. To protect her rights and those of her children, Ms. H submitted a petition in June 2018 to the People's Court of Thai Hoa District-level Town to declare Mr. V missing, and the court issued Decision No. 06/2018/QDDS-ST dated November 21, 2018. Since the court's decision, there has been no news of Mr. V. Thus, Ms. H requested the People's Court of Thai Hoa District-level Town to grant her a divorce from Mr. Le Van V."

Judgment on divorce with a missing person No. 05/2018/HNGD-ST

- Adjudicating authority: People's Court of Binh Gia District, Lang Son Province.

- Excerpt from content: “In 1982, Mr. Hoang and Ms. Hoang Thi T met, voluntarily married, and registered their marriage. After the marriage, they lived happily and had four children. In 2007, Ms. Hoang Thi T suddenly left the family without a known address. Mr. Hoang sought her everywhere, including at Ms. Hoang Thi T's family, but to no avail. To protect his rights and interests, Mr. Hoang Van H requested the People's Court of Binh Gia District on September 22, 2017, to declare Ms. Hoang Thi T missing. On March 16, 2018, in Decision No. 01/2018/QDDS-ST, the People's Court of Binh Gia District declared Ms. Hoang Thi T missing. Now, Mr. Hoang Van H requests the court to grant him a divorce from the missing Ms. Hoang Thi T in accordance with the law.”

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