Learn about the procedure of an amicable divorce with a foreigner in Vietnam

1. What is an amicable divorce?

According to Article 14, Clause 3 of the Law on Marriage and Family 2014 (Marriage & Family Law):

“Divorce is the termination of the marital relationship by a legally effective judgment or decision of the Court.”

Also according to the Marriage & Family Law, either the wife or husband or both have the right to request the Court to settle the divorce:

- If only the wife or husband requests a divorce, it will be done according to the unilateral divorce procedure as requested by one party.

- If both spouses request a divorce, it will be done according to the amicable divorce procedure.

Therefore, an amicable divorce can be understood as a divorce that occurs with the agreement and consent of both spouses.

According to Article 55 of the Marriage & Family Law specifying the conditions for the Court to recognize the amicable divorce of two spouses, specifically:

“In the case where both spouses request a divorce, if it is found that both parties truly voluntarily agree to divorce and have agreed on the division of property, as well as on the care, upbringing, education of children based on ensuring the legitimate rights and interests of the wife and children, the Court shall recognize the amicable divorce; if there is no agreement or if the agreement does not ensure the legitimate rights and interests of the wife and children, then the Court shall settle the divorce.”

It can be said that the genuine voluntary agreement of the spouses is a condition for the Court to recognize an amicable divorce.

2. Procedure for an amicable divorce with a foreigner

This is the case where both the wife and husband jointly request a divorce based on voluntary agreement and have agreed on the division of property, as well as on the care, upbringing, education of children, and ensure the legitimate rights and interests of the wife and children.

The procedure for an amicable divorce with a foreigner includes:

Step 1:Prepare the divorce dossier: the amicable divorce dossier is prepared according to the checklist; the documents in the dossier if issued by a foreign authority must be legalized by the consular.

Step 2:Submit the amicable divorce dossier: the divorce dossier can be submitted directly or sent by post to the competent People's Court for resolution; you can also authorize a lawyer or a relative to receive the dossier and submit it directly to the Court.

Step 3:Court review, dossier reception, and settlement of the amicable divorce request

Within 7-15 days, the Court will review the dossier, if the dossier is complete and valid, the Court will notify the payment of the temporary advance fee within 5 days. After completing the fee payment as per the notification and submitting the receipt for collection, the divorce case will officially be accepted and settled by the Court according to regulations.

In cases where the dossier is not complete as required in Clause 2, Article 362Code of Civil Procedure 2015

Cases identified as amicable divorces with a foreign element:

- According to Article 25, Clause 3 of the Law on Marriage and Family 2014, cases identified as marriages and families with foreign elements are as follows:

“Marriages and families with foreign elements are marriages and families in which at least one party is a foreigner, a Vietnamese residing abroad; marriages and families between parties who are Vietnamese citizens but established; changed; terminated their relationship under the laws of a foreign country; arising abroad or involving property related to that relationship abroad.”

- Accordingly, to be identified as an amicable divorce with a foreign element, one must meet the requirements in terms of subjects or legal relationship and satisfy three conditions as follows:

+ Both parties desire the divorce and jointly sign the divorce petition.

+ Agreement on the issue of children and ensure their rights and interests.

+ Agreement on the issue of property in the event of divorce.

If unable to meet just 1 of the 3 requirements above, the divorce will be determined by the Court as a unilateral divorce with a foreigner.

Divorce can be carried out at the request of both parties or at the request of one party. In cases where both spouses desire a divorce and have agreed on issues regarding children and property, the divorce will be determined as requested by both parties or in other words proceeding with an amicable divorce.