Is it permissible to settle a divorce to a husband who is in prison in Vietnam? Is it permissible to request unilateral divorce to an irresponsible husband in Vietnam?

Is it permissible to settle a divorce to a husband who is in prison in Vietnam?

My husband and I have been living together for 5 years. Many conflicts occurred, so we stopped living together. In 2018, my husband broke the law and was sentenced to 20 years in prison. What do I need to do if I want to get a divorce?

Answer:

Pursuant to Clause 1 Article 51 of the Law on Marriage and Family in 2014, husband or wife or both has or have the right to request a court to settle their divorce.

Pursuant to Article 56 of the Law on Marriage and Family in 2014 stipulating divorce at the request of one spouse as follows:

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.

As regulations above, you may request for an ununilateral divorce as the marriage purpose is unachievable.

Procedures to settle a divorce to a husband who is in prison:

You shall file a dossier at the People's Court of the district where your husband resides and works before serving the prison sentence. The dossier includes:

- Application for divorce (according to the form).

- Copy of ID card (Passport); Passport (with a copy of the original).

- The original of the marriage certificate (if any), in case the original marriage certificate is lost, a copy certified true of the original issued by a competent state agency must be clearly stated in the petition.

- Copy of birth certificate (if you have children).

- Copies of documents on property ownership (if there is a property dispute).

After the Court accepts the divorce petition, the Court will entrust the local Court where the prison where your husband is serving the prison sentence to get his opinion. After that, divorce proceedings will be conducted in absentia.

Is it permissible to settle a divorce to a husband who is working abroad?

I am going to work abroad. My wife asks for a divorce in my absence while my children are under 1 year old. Do I have the right to raise my children? While I am working abroad, I do not sign the divorce papers and do not authorize anyone to divorce. s it permissible to settle a divorce in absentia?

Answer:

Firstly, about the right to request for divorce:

Pursuant to Clause 3 Article 51 of the Law on Marriage and Family in 2014, a husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

As regulations above, a husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child. However, this provision does not allow the husband to divorce but does not prohibit the wife from doing this. Therefore, the wife has the right to rẻquest the Court to resolve the divorce while raising children under 12 months.

Second, about child custody upon divorce in case the child is under 36 months old:

Pursuant to Clause 3 Article 81 of the Law on Marriage and Family in 2014 stipulating as follows:

3. A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.

As regulations above, after the divorce, a child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child. Therefore, if your child is under 1 year old and you are abroad, your wife is the one to take care of your child, in this case you do not have custody of the child.

Third, Is it permissible to settle a divorce to a husband who is working abroad?

According to the provisions of Articles 28, 37, 39 and 469 of the Civil Procedure Code 2015, the competence to settle divorce cases in the case where one litigant is abroad and the other in Vietnam belongs to the jurisdiction of the people's court of the province where the defendant resides.

According to the provisions of Articles 228 of the Civil Procedure Code 2015 stipulating as follows:

The Courts shall proceed with the case adjudication in the following circumstances:

1. The plaintiff, the defendant or the persons with related interests and duties and their representatives are absent from Court sessions but such plaintiff/defendant/person with related interests and duties files an application to request the Courts to conduct the trial in their absence;

2. The plaintiff, the defendant or the persons with related interests and obligations, who are absent from Court sessions, have their lawful representatives to attend the Court sessions;

3. The cases prescribed in points b, c, d and dd clause 2 Article 227 of this Code.

If you are unable to attend the court hearing in Vietnam, or you have a summons but still evade participation or do not authorize participants to attend the court hearing, the Court will still hear the divorce in your absence.

Is it permissible to request unilateral divorce to an irresponsible husband in Vietnam?

My husband is addicted to gambling, drinking. He doesn't care about working. He usually comes back home at 3 or 4 in the morning causing troubles for me, children and the neighbors. However, my husband never beat me. Can I get a divorce unilaterally? I hope Lawnet can advise me.

Answer:

Pursuant to the Law on Marriage and Family in 2014, husband or wife or both has or have the right to request a court to settle their divorce.

Pursuant to Article 56 of the Law on Marriage and Family in 2014 stipulating divorce at the request of one spouse as follows:

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.

In your case, you have the right to file for divorce unilaterally. When a spouse requests a divorce but the conciliation at the Court is unsuccessful, 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. Those acts are:

- Acts of domestic violence is when the husband or wife using force against each other.

- Infringing upon the rights and obligations of husband and wife, causing serious problems in marital life such as: not loving, being faithful, respecting, caring, caring for and helping each other; share together, perform household chores that lead to an unhappy marriage between the two of you.

In addition, accoridng to Article 19 of the Law on Marriage and Family 2014, the husband and wife relationship is considered an obligation of each party. Therefore, if your husband is not responsible for taking care of you and for your family life, your husband may have violated his obligation. The court will consider your breach of this obligation as a basis for approving your unilateral divorce.

Best regards!