Thank you for your question. Regarding this matter. Lawnet has the following comments:
Regarding the conditions for declaration of person missing
Clause 1, Article 68 of Vietnam's Civil Code 2015 stipulates as follows:
"1. When a person has disappeared for two consecutive years or longer and there is no reliable information on whether such person is still alive or dead even though notification and search measures have been fully applied in accordance with the civil procedure law, a court may, at the request of a person with related rights or interests, declare such person is missing.
The two-year time limit shall commence from the date the last information on such person is obtained; if the date of the last information cannot be determined, this time limit shall commence from the first day of the month succeeding the month when the last information is received; if the date and month of the last information cannot be determined, this time limit shall commence from the first day of the year succeeding the year when the last information is received."
Her husband has been away from home for more than 2 years and no one has any real information regarding his situation, so you can ask the Court to declare him missing.
Regarding the procedures for declaration of person missing
Step 1: File a petition to declare a person missing to the Court
Article 387 of the Civil Procedure Code 2015 stipulates:
"1. Persons with related rights and interests shall be entitled to request the Court to declare a person missing under the provisions of the Civil Code.
2. The petitions must be accompanied by materials and evidences to prove that the persons who are requested to be declared missing have been absent for 02 consecutive years or more without reliable information on whether they are still alive or dead and prove that the petitioners have taken sufficient measures for search notices. In cases where the Courts have issued decisions on notice on search of the persons absent from their residence places, copies of such decisions must also be submitted."
Thus, you need to prepare documents, including: a request to declare a person missing, accompanied by documents proving that you and your family have fully have taken sufficient measures for search notices but there are still no news of your husband's life or death.
Step 2: The court consider the petition to declare a person missing
Within 20 days as from the date of receiving a petition for declaring a person missing, the Court shall issue a decision on a notice on search of the person who is requested to be declared missing.
The content of such a notice and the announcement of the notice shall comply with the provisions of Articles 384 and 385 of the Civil Procedure Code. The time limit for such a search notice shall be 04 months from the day on which such notice is posted or broadcasted for the first time.
Within the time limit for announcing a notice, if the petitioner withdraws his/her petition or the person who is requested to be declared missing returns and requests the Court to stop considering the petition, the Court shall issue a decision to terminate the consideration of the petition for declaring that person missing.
Within 10 days from the day on which the time limit for search notice prescribed in clause 2 of this Article expires, the Court must open meeting for considering the petition.
Step 3: The court issues a decision to declare the person missing
In case of accepting a petition, the Court shall issue a decision declaring a person missing.
In cases where the Court is requested to take measures to manage properties of the person who is declared missing and the request is accepted, the decision declaring a person missing must also indicate specific measures to be taken to manage properties of that person according to the provisions of the Civil Code.
Regarding the procedures for divorce with missing person person
After the Court issues a decision declaring your husband missing, you can ask the Court to unilaterally settle the divorce. The Civil Code 2015 stipulates that in case the spouse of the person who is declared missing applies for a divorce, the Court shall settle the divorce in accordance with the law on marriage and family.
The application file for unilateral divorce includes:
- An application for unilateral divorce (according to the form);
- Original marriage certificate;
- The Court's decision to declare a person missing;
- Copy of ID card or citizen identity card of the couple;
- Copy of household registration book of the couple;
- A copy of the child's birth certificate (if any);
- Documents proving property ownership, such as certificates of land use rights (if any).
Here are some basic information to help you prepare for your divorce proceedings. Normally, the time for unilateral divorce settlement with the missing person can take 4-6 months. If you have any further questions, please contact the hotline (028) 7302 2286 for answers.
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