Is separation mandatory before divorce in Vietnam?

Is separation mandatory before divorce in Vietnam?

I heard many people say that before a divorce, there must be time to separate before the court can accept the application. My husband and I have broken up for a long time, and now we both decided to divorce. Many people told me that separation is a mandatory procedure before divorce, otherwise the court will not handle it. So is it true? My husband and I borrowed some money from my cousin to do business, but we still haven't paid it off. After the divorce, am I or he responsible for this debt?

Reply:

Currently, there is no legal document on separation, nor does it stipulate that separation is a mandatory procedure before applying for a divorce.

Article 51 of the Law on Marriage and Family 2014 provides for the right to request divorce settlement as follows:

1. Husband or wife or both has or have the right to request a court to settle their divorce.

2. A parent or another next of kin of a spouse has the right to request a court to settle a divorce when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.

3. A husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

Compare the above-cited regulation and other provisions related to divorce specified in the Law on Marriage and Family 2014 in Vietnam with your case, if you and your husband both agree to terminate the marriage relationship. You can file a divorce petition and send it to the court where you and your spouse are residing to be handled and resolved without having to go through the separation period.

Regarding property obligations of husband and wife towards a third party upon divorce

Article 60 of the Law on Marriage and Family 2014 provides:

1. Property rights and obligations of husband and wife toward a third party remain effective after divorce, unless otherwise agreed by husband and wife and that party.

2. When a dispute arises over property rights and obligations, the settlement of such dispute must comply with Articles 27, 37 and 45 of this Law and the Civil Code.

Thus, according to the above provisions in Vietnam, after the divorce, if you and your husband still have not paid off the debt to your cousin and there is no other agreement, you and your husband are still obliged to jointly pay the amount owed to your cousin. 

From 2017, if I am only separated from my husband, will I be entitled to his inheritance in Vietnam?

From 2017, if I am only separated from my husband, will I be entitled to his inheritance? Hello, my name is Kim Lien, currently working as an Accountant at Xuan Ngoc Co., Ltd., I have a question and want to ask you for advice. I have been married since 2013, I have registered my marriage at the People's Committee of the commune where my husband lives. At the beginning of 2015, when I was pregnant, I found out that my husband had girlfriend, so after giving birth, he and I lived separately (I am the one taken care of my child). In December 2016, I filed for divorce in court but it has not been resolved. Until the beginning of 2017, he returned to his hometown to marry his girlfriend, although he had not completed the divorce procedure with me. Now that my husband died in a traffic accident (without a will), the husband's family said to sell my husband's house to share the money with that woman, not me. Am I entitled to his inheritance by law? I hope you can advise me. Sincerely thank! Email: kim.lien***@gmail.com

Reply:

Your problem needs to be analyzed based on many different legal aspects.

First, about the relationship between husband and wife

The current law on marriage and family does not have the concept of separation nor the legal consequences of separation. In Clause 14, Article 3 of the Law on Marriage and Family 2014, divorce means termination of the husband and wife relation under a court’s legally effective judgment or decision. Therefore, even though you and your husband have been separated for more than a year and your husband has filed for divorce, there has not been a judgment or decision of the court, so your marital relationship still exists. 

Second, about the division of your husband's estate

As stated above , at the present time, you and your husband are still husband and wife and recognized by law. Your husband's death without leaving a will is the basis for the division of your husband's estate according to the law (Article 650 Civil Code 2015). According to this regulation, when dividing the estate according to the law, you, your common children and your husband along with your husband's father and mother will be in the first line of inheritance according to Clause 1, Article 651 of the 2015 Civil Code. Therefore, unless otherwise agreed, the inheritance will be divided equally among the above persons. Your husband's family members do not have the right to decide or divide your husband's inheritance by themselves.

In addition, with your husband's girlfriend, even though you have been married, the law does not recognize this person as your husband's wife. Therefore, she has no right to receive any part of the estate when dividing the inheritance according to the law in Vietnam.

We also give you extensive advice, if the husband's family deliberately decides to dispose of the husband's estate on their own, you can file a lawsuit and file it at the people's court where your husband's house is located to be resolved. divide the estate according to the law in Vietnam.

The above is the advice of us on the inheritance of the husband when only separated. You should refer to the Civil Code 2015 for details on this provision.

What is the separation period for property division in Vietnam?

My husband and I separated since 2013, but our children are still young, so we do not want to apply for divorce. Because of each person's business, now we want to divide the property. In the case of divorce, can I divide property in the name of my father-in-law? I would like to ask if the couple has not yet done the divorce procedures, can the husband and wife agree to divide the common property?

Reply:

Currently, there is no legal document regulating separation, so the separation time is still determined to be within the marriage period. According to the provisions of Clause 13, Article 3 of the Law on Marriage and Family 2014: "Marriage period means the duration of existence of the husband and wife relation, counting from the date of marriage registration to the date of marriage termination".

Regarding the case of your husband and wife, even though they have been separated since 2013, they have not completed divorce procedures as prescribed by law, so the husband and wife relationship still exists. The division of property will comply with the procedures for property division during the marriage period specified in Article 38 of the Law on Marriage and Family 2014 as follows:

1. During the marriage period, except the case prescribed in Article 42 of this Law, husband and wife have the right to reach agreement on division of part or whole of common property. If they fail to reach agreement, they have the right to request a court to settle it.

2. An agreement on common property division shall be made in writing. This agreement shall be notarized at the request of husband and wife or as prescribed by law.

3. At the request of a spouse, a court shall settle the common property division according to Article 59 of this Law.

Thus, if you are not in the cases where it is not allowed to divide common property during the marriage period as prescribed by law in Vietnam, you and your wife have right to agree on the division of property. The content of the written agreement includes basic information such as: name, age, place of residence of the couple, divided property, division agreement, rights and obligations of the parties, time of property division. take effect, other agreements must be signed by the husband and wife... The division of property must be made in writing and must be notarized according to the provisions of law.

In case you and your wife cannot agree on the division of common property, you can file a petition for division of common property to the district court where the couple is residing to resolve the division of property in accordance with the law in Vietnam.

Best regards!