However, when a Vietnamese is divorcing a foreigner it becomes a very complex process. There are several documents to be provided and the court issues the final statement that determines whether the marriage will fall through or not.
Before getting divorced to a foreigner as a Vietnamese, you must consider marriage status, property division, custody of children, and settlement of debts among others. In Vietnamese, there are two types of divorce and they are the consensual and the non-consensual divorce. The consensual divorce is usually the best approach because it doesn’t take a lot of time and couples do not have to file a petition at the court.
To identify how divorce works between a Vietnamese and a foreigner, let us examine what Consensual and Unilateral divorce it and how to go about both.
As a follow-up to a previous article and interview on Vietnam Insider, we wanted to provide some insights about the divorce between a foreigner and a Vietnamese person in Vietnam.
Consensual Divorce
A consensual divorce happens when both parties reach an agreement on major issues that affects the marriage. Here, they are expected to have agreed on who takes custody of children, how properties are to be shared, and debts settled.
Both parties will then approach a competent court to make a pronouncement on their decision. Some important point to note with regards to consensual divorce in Vietnam include:
The Competence of the Court
One of the major things to note when seeking consensual divorce is the competence of the court. This is very important because any pronouncement made by a court that is incompetent is null and void and can be challenged. The residing status of spouses and location of properties within or outside Vietnam are some of the factors that determine the competence of the court. A competent court to make divorce pronouncement in Vietnam could be a provincial-level or district-level court.
Documents to Be Submitted
To seek a divorce in Vietnam, spouses are to write a request letter. This letter contains the date of the request, name of the court where the divorce is sought, information of spouses, details, and reasons for the divorce. Since it is presumed that they have reached an agreement on important matters, couples are to provide documents that supports any of such agreement.
Procedure of Divorce
A consensual divorce in Vietnam takes between one – three months from the date the request letter made by spouses is received by the court. It takes this long because the judge that is in charge of the case is expected, by law, to take steps to mediate between couples. The judge is to make a final ruling only when all efforts at reuniting couples proves abortive. Where mediation succeeds, the judge immediately terminates the divorce. The judge will only approve the consensual divorce when:
- The divorce is a voluntary decision of spouses
- The spouses have reached agreement about property division and custody of children.
- The legitimate rights of wife and children have been addressed.
When a divorce pronouncement is made taking into consideration all of the above, it takes effect immediately and cannot be appealed.
Pros and Cons of Consensual Divorce
The god side to consensual divorce is that it helps spouses to save their time and money. Also, after the divorce, both parties can still maintain a relationship that works for their children.
Non-consensual or Unilateral Divorce
Unilateral divorce, unlike consensual divorce, takes a lot of time as it involves a lot of complex process. As a Vietnamese seeking to divorce a foreigner, there are some things you must note about non-consensual divorce and they include:
The Competence of the Court
The competence of the court for unilateral divorce is similar to that of consensual divorce. The difference is that for divorce to be valid, the affected spouse is to file a petition to the court where the other party resides. There are, however, laws in Vietnam that gives the petitioner the freedom to choose a settlement court of their choice.
Documents to Be Submitted
To get a unilateral divorce, one of the spouse is to prepare a petition dossier that has its roots in the relevant divorce laws of the state where the application is made. Attached to this petition is a documents that shows why the court should intervene in the marriage and grant divorce. For easy application, the foreigner must provide a translation from their foreign language to Vietnamese.
Procedure of Divorce
After a petition dossier is filed before a court of competent jurisdiction, the court reviews the petition and notifies the petitioner of such receipt. A unilateral takes between nine to twelve months before the marriage is finally dissolved.
Meetings are held to evaluate evidences that supports the claim of the petitioner. The court will also take steps to mediate between couples and ensure issues can be addressed through other means of dispute resolution. Where every step to reconcile couples fail, the court takes steps to finalize the divorce by settling:
- The marital status of the spouses
- Property division and debt settlement
- Custody of children and other related issues
The involvement of children remains the major reason why unilateral divorce are complicated as both parties want to retain custody of children.
After divorce has been made, couples can appeal the decision within 15 days. However, there cannot be any appeal when the final decision have been reached been reached.
Interview of a divorce lawyer in Vietnam
Guillaume from Movetoasia invited Minh, lawyer in Vietnam, to learn more about some common personal matters that he is used to deal with :
This interview will give you the general picture about typical cases involving foreigners and vietnamese in Vietnam. If you want to learn more, you will find this article about law firms and lawyers in Vietnam and some legal notes on divorce procedure between foreigner and vietnamese.
Hiring a Family Lawyer to Handle Unilateral Divorce
Consensual divorce is simple and spouses may not need to hire a lawyer to finalize the process. However, where it is a unilateral divorce, the services of an experienced lawyer is needed to –
- Take facts from couples about the divorce and review documents
- Advise clients on the best legal steps to take per time
- Prepare petition dossiers, agreements, letters, and other documents to be submitted to the court
- Oversee the process of mediation with the other spouse
- Keep the petitioner updated on recent developments with the case.
Finally, consensual divorce is the best approach, but not all divorce will be consensual. Where parties to a divorce find it difficult to agree on every term of the divorce, a unilateral divorce becomes inevitable. Regardless of the divorce type parties are seeking, it is important that they comply with all the statutory requirements.
