1. Should you opt for mutual consent divorce or unilateral divorce?

Mutual consent divorce is applicable when: According to the law, there are two types of divorce: mutual consent divorce and unilateral divorce. If both spouses request a divorce and the court determines that both parties genuinely agree to divorce, have reached an agreement on the division of properties, joint debts, and the care, upbringing, and education of children while ensuring the legitimate rights of the wife and children, the court will recognize the mutual consent divorce. If they are unable to reach an agreement, or if their agreement does not guarantee the legitimate rights of the wife and children, the court will resolve the divorce.

Unilateral divorce occurs when: A unilateral divorce is when one of the spouses requests the divorce due to the unwillingness to continue the marriage. In this case, the court will resolve the divorce if the conditions stipulated in Article 56 of the Marriage and Family Law 2014 are met.

Thus, to determine whether it is a mutual consent divorce or a unilateral divorce, the voluntary consent of both spouses must be considered:

• Both spouses voluntarily agree to divorce and sign the divorce petition.
• They have agreed on child custody and alimony, and this agreement must ensure the legitimate rights of both spouses and the child.
• They have reached an agreement on the division of properties and joint debts, or if no agreement has been reached, but they do not request the court to resolve the property issue.

If any of the above 03 factors cannot be agreed upon, the divorce will be considered unilateral.

2. What are the reasons for divorce, and will the court accept those reasons?

The reasons for unilateral divorce accepted by the court are based on the provisions in Article 56 of the Marriage and Family Law 2014 and Resolution No. 01/2024/NQ-HĐTP dated May 16, 2024, specifically as follows:

a. Domestic violence by a spouse

Domestic violence is an undesirable situation in marriage. It refers to actions by a family member that cause harm to the mentality, physicality, economy, or emotion of other members. According to Clause 1, Article 3 of the Law on Domestic Violence Prevention and Control 2022, domestic violence includes the following actions:

• Abusing, mistreating, beating, threatening, or any other intentional acts that harm health or life;
• Insulting, denigrating, or any other intentional acts that harm honor or dignity;
• Forcing someone to witness violence against people or animals to cause constant psychological pressure;
• Neglecting or failing to provide care for family members such as children, pregnant women, women with children under 36 months, the elderly, the disabled, or those incapable of care for themselves; failing to educate children;
• Discriminating against family members based on their appearance, gender, or ability;
• Preventing family members from engaging with relatives or having lawful and healthy social relationships, or any other acts that isolate them and cause constant psychological pressure;
• Preventing family members from exercising their rights and obligations in family relationships between grandparents and grandchildren, parents and children, spouses, or siblings;
• Revealing or distributing private, personal, or family information to harm the honor or dignity of family members;
• Forcing sexual acts against the will of the spouse;
• Forcing the performance of pornographic acts; forcing them to listen to, watch, or read pornographic or violent content;
• Forcing underage marriage, marriage, divorce, or obstructing legal marriage or divorce;
• Forcing pregnancy, abortion, or choosing the sex of a fetus;
• Seizing or destroying joint family property or a member's personal property;
• Forcing family members to study or work beyond their abilities, contributing financially beyond their capacity, controlling the family’s property or income to induce material, psychological, or other forms of dependence;
• Isolating or imprisoning family members;
• Forcing family members to leave their legal residence unlawfully.

b. A spouse severely violates the rights and obligations of the marriage

Serve violation of rights and obligations of a spouse is a serious infringement of the other spouse’s legal rights and interests, causing the marriage to fall into a serious state, making it impossible to continue the marital life, and the marriage's purpose cannot be achieved. This is also one of the grounds for unilateral divorce approved by the court. Specifically:

• Having the equal rights and obligations in all family matters, including the exercise of citizens' rights and obligations;
• Having the obligation to love, be loyal, respect, care for, and support each other; share household chores;
• Having the obligation to respect, preserve, and protect each other’s honor, dignity, and reputation; respect each other’s freedom of religion and belief;

When the marriage to fall into a serious state, making it impossible to continue the marital life, and the marriage's purpose cannot be achieved, it can happen in the following situations:

• Not having marital affection; not loving, respecting, caring for, or supporting each other; living separately, abandoning the other spouse;
• Engaging in an extramarital affair;
• Insulting each other, damaging each other's honor, dignity, and reputation, causing emotional harm or physical injury;
• Not having equality in rights and obligations between spouses, not respecting each other's freedom of belief and religion, and failing to support or create opportunities for each other's development.

c. Divorce requested by the spouse of a missing person

According to Clause 2, Article 68 of the Civil Code 2015, if the spouse of a missing person requests divorce, the court shall resolve the divorce according to the regulations of the law on marriage and family. Therefore, if a person is declared missing by the court, their spouse has the right to file for divorce. In this case, the petition shall be granted, and the court will resolve the divorce as requested.

3. Who has the child custody in case of divorce?

Divorce is not only the termination of the marital relationship between husband and wife but also raises many legal issues, especially regarding the upbringing and care of children. The determination child custody, ensuring their maximum benefit both materially and emotionally, is a crucial decision that directly affects the child's development. Therefore, parents need to understand the law clearly and scrutinize the most suitable option for their children.

The Family and Marriage Law 2014 and its guiding documents provide quite specific and detailed regulations on the rights and obligations of parents towards their children and vice versa. It includes provisions on child custody, visitation, care, and education after the divorce. When resolving a divorce, the court always follows the principle of mutual agreement between parents regarding child custody arrangements. Therefore, the parents may reach an agreement on who will directly take care of the child and on the rights and obligations of each party regarding the child before, during, or after initiating divorce proceedings. If the parents cannot reach an agreement, the court will base its decision on the child's interests and if the child is over 7 years old, their expressed wishes.

In considering the child's overall interests, as stipulated in Clause 2, Article 81 of the Family and Marriage Law 2014, the court must evaluate comprehensively and objectively the following criteria:

• Firstly, love, attention, and time conditions for raising, educating, and well-being about the child by the parents

The emotional aspect in the development of children is a key factor in shaping the child’s personality. Only parents who genuinely care and love their children can dedicate significant time and effort to raising and educating them. This concern and care require sustained effort over an extended period, demanding perseverance from both parents. Therefore, documents and evidence demonstrating the parents' care and attention prior to divorce, such as images or videos of school drop-offs, parent meetings, family outings, vacations, serve as important evidence for the court’s consideration.

• Secondly, material conditions

These are documents that prove the stable, legal income of the parents. This may include labor contracts, salary statements, or bank account statements. Income from other sources such as savings books, stock or bond certificates, and rental income, etc., may also be considered.

• Thirdly, housing conditions

One of the factors in determining the child custody is the housing situation of each spouse after the divorce. The law does not require the custodial parent to own real estate, but in cases where both parents wish to gain the child custody and other factors are equal, the court will give priority to the parent with stable housing. This is based on the reality that a parent without a fixed residence and who frequently changing their place of living will negatively affect the child’s living and educational environment.

• Fourthly, time conditions for raising and educating

Raising and educating a child requires a lot of time and effort. Children’s awareness, psychology, and emotions change at different ages, which requires the person with custody to devote time to observe and educate them. If a parent has a job that requires them to be away from home frequently, such as fieldwork, long business trips, or long-distance driving, or busy jobs, they may not have the time to care for and educate the child.

• Fifthly, living environmental conditions

The living environment, which includes family, school, and social surroundings, greatly impacts a person’s personality and awareness. For children, their environment is primarily their family and school, and this environment significantly affects their personalities and emotions. Therefore, if one parent lives in a healthy environment while the other does not, the court will consider the child’s overall interests when making a decision.

• Sixthly, the conditions and capabilities of the parents to raise and educate the child, including the ability to protect the child from harm or exploitation
  • The child’s right to live with the custodial parent and maintain a relationship with the non-custodial parent.
  • The child’s bond with each parent.
  • The parents’ attention to the child.
  • The assurance of stability and the limitation of disruption to the child's living and educational environment.
  • The child’s wish to live with siblings (if any) for psychological and emotional stability.
  • The child’s wish to live with either the father or the mother.
  • Clause 3, Article 81 of the Family and Marriage Law 2014 stipulates that children under 36 months old shall be directly raised by the mother, if the mother is not capable of directly raising and educating, or the parents have made other agreements that align with the child’s best interests.

4. How is the joint property determined and divided in a divorce?

The division of property in a divorce is stipulated in Article 59 of the Marriage and Family Law 2014, based on three principles as follows:

• The principle of equal division: According to Clause 2, Article 59 of the Marriage and Family Law 2014, joint property is divided equally, but the following factors must be considered:
  • The circumstances of the family in general and of each spouse in particular.
  • The contribution of each spouse to the creation, maintenance, and development of the joint property. In this case, the labor of both spouses within the household is considered as income-generating work.
  • The protection of the maximum interests of both spouses in production and business activities to ensure they can continue working and generating income.
  • Mistakes of either party that violate the rights and obligations of the spouses.

The principle of equal division of property in a divorce can be simply understood as each spouse receiving half (1/2) of the value of the property acquired during the marriage. However, in the divorce proceedings, the court will also consider other factors such as the specific circumstances of each spouse, their contributions, and any mistakes made by the spouses. This means that in some cases, an equal division of property is not always applied, and the division will depend on the actual situation and relevant evidence when dividing joint property.

• The principle of dividing joint property in kind: Under this principle, the law prioritizes the division of property in kind. If division in kind is not possible, then the property will be appraised for its monetary value. The spouse receiving the property in kind will be responsible for paying the others the difference in value.
• The principle of separate property: Each spouse's separate property remains the property of that individual unless it has been merged into the joint property. Furthermore, if there is a merging or commingling of joint and separate property during the division process, the spouse not receiving the property will be compensated by the other for the value they contributed to creating that property.

5. How are joint and separate debts determined in a divorce?

a. Joint debts

Joint debts are understood as those debts  for which both spouses are jointly responsible and must work together to repay to a third party. These include debts arising from transactions agreed upon by both spouses, obligations for compensate for damage for which, both spouses are jointly liable under the law, and debts incurred by either spouse or both spouses to meet the essential needs of the family.

The joint property obligations or joint debts of the spouses to third parties remain even after the marriage relationship is terminated. This means that even after the divorce, the spouses are still jointly responsible for fulfilling the common obligations and repaying the joint debts. If the spouses have joint debts, even after the divorce:

• The creditor has the right to request that either spouse fulfill the entire debt obligation.
• If a spouse repays the joint debt, the person who paid has the right to request the other spouse to reimburse their share of the joint debt.

Therefore, spouses should agree on the division of joint property obligations when divorcing and request the court to recognize this agreement. If no agreement can be reached, the spouses may request the court to divide the joint debts.

b. Separate debts

Currently, the law does not specifically stipulate the definition of separate debts incurred during the marriage. However, it can be understood that financial obligations arising from borrowing or material obligations to a third party, which were incurred before the marriage, or debts arising from the possession, use, or disposal of separate property, except for cases defined by law, or debts incurred from transactions made by a party without serving the essential needs of the family during the marriage, or debts arising from illegal actions by a party.

6. What documents are required for divorce?

a. Documents for mutual consent divorce

• Application for mutual consent divorce, child custody agreement, and property division in the divorce (Available here)
• Original Marriage Certificate
• Written statement/self-declaration of both spouses
• Statement of the child’s wishes (if the child is 7 years old or older)
• Copy of the ID card or Passport of both spouses
• Copy of the joint child’s birth certificate
• Copy of documents related to joint property and joint debts (if the court is requested to settle them)
• Confirmation of residence information of both spouses

b. Documents for unilateral divorce

• Divorce lawsuit petition (Available here)
• Original Marriage Certificate
• Written statement/self-declaration by the petitioner (wife or husband)
• Statement of the child’s wishes (if the child is 7 years old or older)
• Copy of the ID card or Passport of both spouses
• Copy of the joint child’s birth certificate
• Copy of documents related to joint property and joint debts (if the court is requested to settle them)
• Confirmation of residence information of the defendant
• Evidence proving the cause of the divorce (if any)
• Documents proving better conditions for child custody and division of joint property

7. Which court handles divorce cases?

Jurisdiction of district/country courts

• Both spouses are Vietnamese citizens residing in Vietnam
• A spouse is a foreign citizen residing in Vietnam

Jurisdiction of provincial courts

• A Vietnamese citizen with a foreign citizen
• Both spouses are foreign citizens residing in Vietnam
• If a Vietnamese citizen divorces a foreign citizen who is not residing in Vietnam at the time of divorce, and both spouses do not have a common permanent residence

8. What are the costs of divorce?

If there is no property dispute, the divorce court fee is 300,000 VND, as per Resolution No. 326/2016/UBTVQH14

If there is a property dispute, the following fee schedule applies:

9. How long does it take to resolve a divorce?

According to the provisions of the Civil Code, the time to resolve a mutual consent divorce takes about 2 to 3 months from the day the court accepts the file. In the case of a unilateral divorce, the resolution time is longer, ranging from 4 to 6 months. In practice, the resolution time may take even longer due to potential disputes over child custody and properties.

10. Questions related to divorce

(1) Do spouses have to pay each other's separate debts? Separate debts of a spouse are completely independent of joint debts and their marital status. Unless otherwise agreed, the obligation to settle separate debts is the responsibility of the person directly involved in the transaction. The other spouse is not obligated to pay those debts.

(2) Questions the court will ask during a divorce:

• What are the reasons for the divorce?
• Are the spouses still living together or have they separated?
• Have the spouses considered the issues after the divorce?
• Do they need time for reconciliation?
• Have the spouses reached an agreement regarding issues such as child custody, alimony, division of properties, and joint debts?
• Who will have child custody after the divorce, and is there a request for the other party to provide alimony?
• What is the specific amount of alimony?
• Who took care of the children more during the marriage?
• What is the source of the joint properties?
• How were the joint properties accumulated?
• Do both spouses have joint debts?
• Do the spouses request the court to divide the joint properties and debts?