New guidelines on cases where a husband does not have the right to request a divorce from his wife in Vietnam

On May 16, 2024, the Council of Justices of the Supreme People's Court of Vietnam issued Resolution 01/2024/NQ-HDTP, providing guidance on the application of certain legal regulations in resolving family and marriage-related cases. Among these, the provisions for cases where a husband is not entitled to unilaterally divorce his wife were detailed.

Resolution 01/2024/NQ-HDTP takes effect from July 01, 2024.

1. What are regulations on on cases where the husband is not entitled to request a divorce from the wife in Vietnam?

Clause 3, Article 51 of the Law on Marriage and Family 2014 stipulates the right to request a divorce as follows: A husband does not have the right to request a divorce during the time his wife is pregnant, giving birth, or nursing a child under 12 months old.

Resolution 01/2024/NQ-HDTP has provided specific and detailed guidance on the application of this provision. In Article 2 of Resolution 01/2024/NQ-HDTP, the Supreme Council of Justices has provided specific explanations on the provisions under Clause 3, Article 51 of the Law on Marriage and Family 2014 as follows:

(1) “Pregnant” as stipulated in Clause 3, Article 51 of the Law on Marriage and Family 2014 is the period during which the wife carries a fetus, as determined by a competent medical facility, until the time of childbirth or termination of the pregnancy.

(2) “Giving birth” as stipulated in Clause 3, Article 51 of the Law on Marriage and Family 2014 includes the following circumstances:

- The wife has given birth but is not raising the child from the time of birth until the child is under 12 months old;

- The wife has given birth but the child dies before reaching 12 months old from the time of birth;

- The wife is pregnant for 22 weeks or more, and the pregnancy must be terminated.

(3) The husband does not have the right to request the Court to resolve a divorce within 12 months from the day the wife gives birth as guided in points a and b of Clause 2, Article 2 of Resolution 01/2024/NQ-HDTP or the day the pregnancy is terminated as guided in point c, Clause 2, Article 2 of Resolution 01/2024/NQ-HDTP.

(4) In cases where the wife is pregnant or giving birth, the husband does not have the right to request a divorce, regardless of who the wife is pregnant by or giving birth with.

(5) In cases where the wife is raising a child under 12 months old, the husband does not have the right to request a divorce, regardless of whether the child is biological or adopted.

(6) In cases of surrogate pregnancy for humanitarian purposes, the husband's right to request a divorce is determined as follows:

- The husband of the surrogate does not have the right to request the Court to resolve a divorce when the surrogate is pregnant, giving birth, or raising a child under 12 months old;

- The husband of the couple seeking a surrogate does not have the right to request the Court to resolve a divorce when the spouse is raising a child under 12 months old or when the surrogate is pregnant, giving birth, or raising a child under 12 months old.

2. What are regulations on cases of consensual divorce between spouses in Vietnam?

According to Article 55 of the Law on Marriage and Family 2014, consensual divorce is stipulated as follows:

In cases where both spouses request a divorce, if the court finds that both parties truly accept the divorce voluntarily and have agreed on the division of property, the care, upbringing, and education of their children in a manner that ensures the legitimate interests of the wife and children, the court shall recognize the consensual divorce; if the agreements are not reached or if the agreements do not ensure the legitimate interests of the wife and children, the court shall resolve the divorce.

In this scenario, the Council of Justices of the Supreme People's Court provided specific guidance in Article 3 of Resolution 01/2024/NQ-HDTP as follows:

(1) “Both spouses request a divorce” as stipulated in Article 55 of the Law on Marriage and Family 2014 means both spouses sign a request for mutual divorce recognition, agreement on child custody, and property division upon divorce, or one spouse files for divorce, and the other agrees to the divorce, child custody, and property division upon divorce.

(2) The agreement between the spouses on the division of property, the care, upbringing, and education of their children must not violate any prohibitions of the law and must not be contrary to social ethics.

(3) The agreement between the spouses on the division of property shall include instances where the spouses do not request the Court to resolve the property division.

(4) “The care, upbringing, and education of their children” as stipulated in Article 55 of the Law on Marriage and Family 2014 pertains to the care, upbringing, and education of minor children, children who have lost their civil act capacity, or children who are incapable of working and do not have assets to support themselves.

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