According to Vietnam’s regulations, divorce means termination of the husband and wife relationship under a court’s legally effective judgment or decision. This legal event gives rise to 03 important issues to be resolved related to common property, common children and alimony. In case the parties cannot reach an agreement, the following provisions of law shall apply:
Article table of contents
1. Common property
According to Article 59 of the Law on Marriage and Family 2014 of Vietnam on principles of settlement of property of husband and wife upon divorce, common property is mentioned as follows:
When dividing the common property of husband and wife, the Court must determine whether the husband and wife have property rights and obligations towards the third party to include a third party to participate in the proceedings as a person with related interests and obligations in the same case or to guide them to settle another case.
If the parties do not agree to apply the statutory property regime of husband and wife, the common property of the husband and wife shall be divided in half, taking into account the following factors:
- Circumstances of the family, husband and wife;
- Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;
- Protecting the legitimate interests of each spouse in their production, business and career activities to create conditions for them to continue working to generate incomes;
- Each spouse’s faults in the infringement of spousal rights and obligations.
An important principle to note in the process of property division as prescribed by law is to ensure the lawful rights and interests of the wife and minor children, adult children who have lost their civil act capacity or are unable to work and have no property to support themselves. The regulation aims to better protect the rights of women, children and people with disabilities.
2. Common child
Looking after, caring for, raising and educating children after divorce are the rights and obligations of parents towards their minor children, adult children who have lost their civil act capacity or are unable to work and have no property to support themselves. Depending on the divorce case, common child issues will be resolved as follows:
- In case of divorce by mutual consent: The husband and wife will agree on the looking after, caring for, raising and educating children on the basis of ensuring the legitimate interests of the wife and children; this is also one of the grounds for the Court to consider and recognize the divorce by mutual consent;
- In case of child custody dispute:
+ 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;
+ A child under 36 months of age, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects;
+ If a child is full 7 years or older, his/ her desire shall be considered.
Vietnamese law is always in the direction of protecting the maximum legal rights of children, so it is very important to consider the factors of good care for children at each age, economic conditions of the father and mother. In addition, the law also respects the wishes of the child if the child is of age and able to perceive and make decisions.
3. Support
After resolving the issue of common children and deciding whether the parent will be the one to raise the child after the divorce, the other person who does not directly raise the child has the obligation to support. Accordingly, the child receiving support is a minor child, an adult child who is unable to work and has no property to support himself.
In addition, support obligations may arise between husband and wife after divorce if there are grounds to believe that:
- A party facing financial difficulties requests maintenance;
- There are plausible reasons;
- The other party has the obligation to provide maintenance according to his/her ability.
Thus, after the divorce, the husband-wife relationship between the two subjects will be terminated, but the legal consequences will still exist such as the issue of common children and alimony. Spouses need to understand their rights and responsibilities to comply with the law.
Thuy Tram
- Key word:
- Law on Marriage and Family 2014
