Wife Leaves Home with Documents, Can the Husband File for Unilateral Divorce?

Reader's query:

My spouse and I have been married for three years and we have a one-and-a-half-year-old son. Since I am an only child, after marriage, my wife and I have been living with my biological parents. Four months ago, due to marital conflicts, my wife left home for Hanoi without my permission. When she left, she took all our savings, the household registration book, and the house and land documents. Now, I want to divorce my wife. How will the custody of my child be determined?

Lawyer's response:

We are very sorry to hear about your family's situation. Before proceeding with a divorce, you should carefully consider this decision. If you still decide to divorce, you need to take the following into account:

First, if both spouses voluntarily request to terminate the marriage and have an agreement regarding property and children, they should jointly file a request to the Court for divorce. An uncontested divorce is manifested by submitting a joint petition for divorce to the Court by both spouses.

Article 55 Law on Marriage and Family 2014 stipulates:

"In case of both spouses requesting a divorce, if the Court finds that both parties truly voluntarily divorce and have reached an agreement on property division and child custody based on ensuring the legitimate interests of the wife and children, the Court shall recognize the uncontested divorce; if no agreement is reached or the agreement does not ensure the legitimate interests of the wife and children, the Court shall resolve the divorce."

Second, in case only you request a divorce, you may file for a unilateral divorce. Article 56 of the Law on Marriage and Family 2014 provides for divorce at the request of one party as follows:

- When a spouse requests a divorce and reconciliation at the Court fails, the Court shall resolve the divorce if there is evidence of domestic violence by a spouse or severe violation of rights and obligations causing the marriage to fall into a serious state, common life cannot prolonged, and the purpose of marriage is not achieved.

- In case the spouse of a person declared missing by the Court requests a divorce, the Court shall resolve the divorce.

- In the event of a request for a divorce under Clause 2, Article 51 of the Law on Marriage and Family 2014, the Court shall resolve the divorce if there is evidence that the spouse commits acts of domestic violence seriously affecting the life, health, or mental state of the other person.

The property of the spouses, and the rights and obligations of the parents and children after the divorce, will be resolved according to the provisions at Articles 59, 60, 61, 62, 63, 64, and Articles 81, 82, 83, 84 of the Law on Marriage and Family 2014. According to Clause 2, Article 81 of the Law on Marriage and Family 2014:

- The spouses agree on who will directly raise the child, and the obligations and rights of each party towards the child after divorce; if no agreement is reached, the Court shall decide to assign the child to one party based on the child's best interests; if the child is seven years old or older, the child's wishes must be considered.

- A child under 36 months of age shall be directly raised by the mother, unless the mother is not eligible to care, raise, and educate the child or there is another agreement between the parents that is in the child's best interests.

Therefore, if you request a divorce, you need to file a petition at the Court where your spouse is residing. If the Court accepts the divorce petition and agrees to the divorce, the spouses will be recognized as divorced. Custody of the children will be as per the mutual agreement of the spouses. Given your son’s age (one and a half years), he will be directly cared for by his mother. If you wish to gain custody, you need to prove that the mother is not fit to care for, nurture, raise, and educate the child.

According to vov.vn

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