Divorce – unilateral divorce – property division, child custody rights

Divorce is a frequent occurrence in society. It is recognized by law as a necessary step to protect freedom in marriage as well as consensual marriage. Obviously, for a divorce to be valid, court processes must follow the law.

Related concepts:

1. Divorce is the dissolution of a married partnership by a legal decision of the Court.
2. Property developed by husband and wife includes: revenue from labor, production, and commercial operations, profits, income from separate property, and other income throughout the marriage period are all considered common property of husband and wife. marriage, property inherited/gifted jointly by husband and wife, and any property agreed to be common by husband and wife.
3. Separate property of husband and wife includes: Property that each spouse had before marriage, inherited separately or given away during the marriage. It could include the assets serve the essential needs of the husband/wife and other assets that, according to the law, are privately owned by the husband /wife, and assets formed from separate assets.
4. Common children of husband and wife include: children born during marriage or due to the wife’s pregnancy during marriage are common children of the couple. The children born before the date of marriage but recognized by their parents are accepted as the common child of the couple too.

Relevant legal document to divorce procedures:

1. Law on Marriage and Family 2014
2. Civil Procedure Code 2015

Divorce by mutual consent:

1. Whether both parties desire a divorce and have reached an agreement on property division, custody of the child (without the need for court intervention), the court will recognize the mutual consent divorce.
2. If both parties wish to divorce but cannot make the agreement on property division, custody of the child (or the agreement does not ensure fair rights for the wife and the child), the court will handle the divorce proceedings.

Unilateral Divorce:

1. The wife/husband has the right to request a unilateral divorce. If reconciliation is not possible, the court will consider the actual situation to decide on the divorce.
2. If one party is declared missing by the court, the spouse can file for divorce.
3. Parents or other close relatives of the wife/husband (suffering from mental illness or another condition impairing awareness and self-control) can also request a divorce if there is evidence proving that the person is a victim of domestic violence caused by their spouse, seriously affecting their life, health, and mental well-being.

Documents for divorce application include:

1. Divorce application form (according to the provided template)
2. Copy of ID card/citizen identification card, passport, confirmation of residence information
3. Original marriage certificate
4. Documents proving ownership of property (if property division is requested)
5. Copy of the child’s birth certificate (if you already have a child/children).

The divorce application procedure:

1. In the case of a mutual consent divorce: Submit the application to the competent court where the wife/husband resides.
2. In the case of a unilateral divorce: Submit the application to the competent court that the spouse filed the divorce.

Principles for settling the property of the husband and wife in a divorce:

1. Property settlement is based on mutual agreement; if agreements are not reached, the court will settle it according to the request of the wife, husband, or both.
2. The joint property of the husband and wife is divided in half. However, it takes into account factors such as:
   1. Family circumstances;
   2. Contributions of both parties to the establishment, maintenance, and development of the joint property;
   3. Protection of the legitimate benefits of each party in production, business, and profession to enable them to continue working and generating income;
   4. Faults of each party in infringing the rights and responsibilities of the husband and wife.
3. The joint property will be divided in kind. If it cannot be divided in kind, it will be divided according to value. The party receiving a portion of the property in kind with a higher value than their entitlement must compensate the other party for the difference.
4. In cases of merging or intermingling of separate and joint property. If both parties request the division of property, each party will be compensated the value of the property they contributed.
5. Separate property of the wife or husband belongs to the ownership of that person.

Principles of sharing responsibilities for the care, custody, upbringing, and education of children after divorce:

1. After divorcing, the parents still have rights and responsibilities to take care of, nurture, and educate underage children or incapacitated adult children who lack civil behavior capacity, unable to work to survive themselves as stipulated by law.
2. Husband and wife could agree on who will directly care for the children, and the responsibilities as well as rights of each party after divorcing. In cases there is no agreement is reached, the court will decide the custody based on the child’s overall interests (considering the child’s wishes if they are 7 years old or older).
3. Children under 36 months old: will be entrusted to the mother for direct care (except when the mother is not qualified to care for the child directly, or if there is a different agreement between the parents that is better for the child).
4. After divorcing, the non-custodial parent has the rights and responsibilities to visit the child without interference.
5. If the non-custodial parent abuses visitation rights to obstruct or negatively impact the custody, upbringing, and education of the child, the custodial parent has the right to request the court to restrict the visitation rights of the non-custodial parent.

If there are any questions or concerns regarding the divorce procedure feel free to contact An Luat Vietnam for assistance and consultation.