1. What is a consensual divorce with foreign elements?

According to the provisions of Clause 14 Article 3 of the Law on Marriage and Family 2014, divorce is the termination of a conjugal relationship according to a legal effective judgment or decision of the Court.

According to the provisions of Clause 1, Article 127 of the Law on Marriage and Family 2014, divorce with foreign elements is a divorce between a Vietnamese citizen and a foreigner, between a foreigner and a foreigner permanently residing in Vietnam.

Consensual divorce with foreign elements is a case of divorce in which both husband and wife (Vietnamese citizens and foreigners, foreigners together permanently residing in Vietnam) jointly request the termination of marriage, which is expressed by the consensual divorce petition of the husband and wife. Thus, differenting from unilateral divorce, consensual divorce is a divorce procedure in which the husband and wife have agreed on the settlement of divorce, child custody and the division of joint property, and how to settle joint debts of the two parties.

2. What are the conditions for settling a consensual divorce?

• Husband and wife voluntarily divorce and sign the divorce petition;
• The custody and child support level have been agreed, this agreement must ensure the interests of the parties and the child;
• The issue of property division has been agreed upon, or no agreement has been reached but the court has not been asked to resolve the property. In case the couple has reached an agreement on property issues and wants the Court to recognize it, they can write in the petition to request the Court to recognize this agreement.
• An agreement has been reached regarding the repayment of joint debt: specify the amount of debt, the creditor, the repayment period, etc., and propose the division of repayment obligations in the petition. If there is joint debts but no agreement has been reached, do not request the Court to divide it.

Note: The husband is not allowed to divorce his wife when she is pregnant (regardless of whose child she is pregnant with), giving birth, or raising a child under 12 months old. However, if the wife is pregnant, giving birth, or raising a child under 12 months old, the wife has the right to request a divorce from the Court.

3. Dossiers of consensual divorce with foreign elements in Vietnam

 A dossier of consensual divorce with foreign elements in Vietnam includes the following documents:

• Petition for recognition of consensual divorce (Petition in the form of the competent);

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• Marriage certificate (Original);
• Identification documents of husband and wife: Identity card; Citizen identification card; Passport (Authenticated copy);
• Certified copies of birth certificates of joint children (if any);
• Documents and evidence related to joint property; joint debt of the couple if requesting for recognition by the Court.
• The petition must follow the form of the competent Court . The contents of the dossier must be complete and accurate in accordance with the provisions of law.

4. Competence to settle consensual divorce with foreign elements in Vietnam

Provincial-level People's Courts  of the locality where the wife and/or husband resides or works have jurisdiction to settle cases of consensual divorce with foreign elements in Vietnam. Except for case that the husband/wife is a foreigner residing, doing business, studying, or working in Vietnam and is present in Vietnam at the time the Court accepts the case, it is under the jurisdiction of the District Court.

5. Order and procedures for settlement of consensual divorce with foreign elements

Step 1: Preparing a complete dossier and submit it to the competent People's Court mentioned in section 3

Step 2: Paying the court fee

After receiving a complete dossier, within 03 working days, the Chief Judge of the Court will assign a Judge to settle. If the application qualifies, the Judge will issue a notice of payment of fees; within 05 working days, the spouses must complete the fee payment and submit a receipt to the Court.

Within 3 working days from the date of acceptance, the litigants will be notified of the settlement of the request for recognition of the consensual divorce.

Step 3: The Court prepares to consider the petition and hold a public session to resolve the request for recognition of the divorce.

The time limit for preparing to consider the petition is 01 month from the date the Court accepts the petition.

Within 15 days from the date of acceptance, the Court shall open a mediation session and conduct mediation in accordance with the law for the spouses to reunite, explaining the rights and obligations of spouses, parents with children, alimony responsibilities.

Step 4: Making a decision

Depending on the conditions of the parties, the Court will make one of the following decisions:

• In case of successful reconciliation, the spouses will reunite together, the Court will issue a decision to suspend the settlement of the divorce request.
• If reconciliation fails and the spouses still desire divorce, and if the spouses are able to reach an agreement on property, joint debts, and children's interests, then the Court shall issue a decision recognizing the divorce. The marital relationship terminates from the date on which the decision recognizing the consensual divorce takes legal effect.
• If no agreement can be reached, the Court will suspend the civil case on consensual divorce and move on to accept the case (at this time there is no longer consensual divorce but divorce at the request of one party or unilateral divorce).

6. How much is the divorce court fee?

According to the List of court fees of Resolution No. 326/2016/UBTVQH14, the first instance fee for resolving marriage and family requests is 300,000 VND. Specifically, husband and wife have the right to agree on paying court fees. If they do not agree, each person will pay half (each person must pay 150,000 VND).

In case of exemption or not having to pay court fees, the requester does not have to pay, specifically:

• Individuals from poor or near-poor households;
• Elderly people;
• People with disabilities;
• People contributed to the revolution;
• Ethnic minorities in communes with particularly difficult socio-economic conditions;
• Martyrs' relatives are granted a Martyr's Family Certificate by the competent State agency.

Note: Persons who are exempt from court fees should have an application and documents proving that they are exempt from court fees to the competent people's court as prescribed (should be accompanied by a dossier requesting recognition of divorce consent).

7. In which cases is mutual consent divorce not recognized?

Although both spouses voluntarily agree to divorce, the Court does not recognize the consensual divorce for the following reasons:
Firstly, the conditions for the Court to recognize the consensual divorce are not met;
Second, there are indications that consensualdivorce is artificial;
Third, the parties' conflicts were mediated in Court;
Fourth, during the divorce settlement process, it is discovered that the wife is pregnant, giving birth or raising a child under 12 months old.

8. Why is it necessary to hire a lawyer to advise on consensual divorce?

Many people believe that divorce is a sensitive issue, a private matter in the house and do not want outsiders to participate and intervene, so they almost do not want to seek a lawyer from the beginning. Because of the lack of legal advice from the beginning, in many cases, divorce procedures are unnecessarily cumbersome, difficult to resolve, affect rights or even lead to unnecessary disputes and damages.

If being consulted from the beginning by a lawyer with extensive knowledge of the law and extensive experience, the client’s divorce will be handled properly,  minimize the emotional effects on family and children. Phong & Partners Law Firm is the optimal choice for clients to access legal services quickly, save money and time.

9. What does a consensual divorce Lawyer do?

a. Lawyers advise on legal issues of divorce, specifically:
- Marriage relationship:

• Advising on the establishment of the marriage relationship to determine the time of establishment, whether the marriage has been registered and whether it is legal or not;
• Advising on conditions, dossiers, order and procedures for consensual divorce with foreign elements at the request of the spouse;
• Advising on the case of marriage termination due to the death of the spouse or being declared dead by the Court;
• Advising parents, other relatives of the spouse on the conditions, dossiers, processes and procedures to request the Court to settle the divorce when husband or wife suffers from mental illness or other diseases that cannot be cognitioned, master their behavior; or being a victim of domestic violence committed by their husband or wife that seriously affects their lives, health, the spirit of the husband or wife...

- Joint children:

• Consulting on identifying father, mother and children;
• Advising on joint custody conditions upon divorce;
• Advising on conditions and procedures for changing custody of children after divorce;
• Advising on regulations on alimony, right to care, nurture and educate children after divorce; about the obligations and rights of parents who do not directly raise their children after divorce; restrictions on parental rights for minor children;
• Advising on right of child custody, taking care of children's education during divorce and after divorce;
• Consulting on alimony levels, methods of child support during divorce and after divorce, etc.

- Joint property:

• Consulting on determining joint property, separate property of husband and wife such as movable property, real estate before and during marriage, joint property in business, property in the family's property, etc.;
• Advising on the division of joint property of husband and wife upon divorce and after divorce;
• Consulting on the property rights and obligations of husband and wife to a third person upon divorce...

- Joint debts:

• Consulting on determining joint debt obligations of husband and wife;
• Consulting on the division of debt repayment obligations of spouses arising before marriage and during the marriage period to third parties such as banks, money lenders, other organizations and individuals, etc.;
• Consulting on financial obligations related to joint property of husband and wife when settling divorce...

- Other related legal issues:

• Advising on collecting necessary and beneficial documents and evidence to resolve disputes over divorce, child custody, division of common property, and joint debt obligations upon divorce;
• Advising on the process and procedures for resolving divorce disputes at the Court;
• Advising on court costs in divorce cases;
• Consulting to determine the compentent People's Court...

b. The Lawyer prepares the dossier of settlement of consensual divorce with foreign elements, specifically:

• Drafting the consensual divorce petition, the petition for presentation of opinions and relevant documents to be sent to the Court;
• Drafting self-declarations, petitions for application of provisional urgent measures, counterclaims or petitions for valuation of assets to procedural agencies at courts;
• Drafting petitions and complaints if any;
• Drafting legal opinion documents to protect the interests of clients at the Court and relevant agencies...

10. Where to find a consensual divorce Lawyer?

In the process of settling a divorce, many difficulties and obstacles needed to settle by a consensual divorce Lawyer. A dedicated and competent divorce Lawyer will best protect the legal rights and interests of clients. Phong & Partners Law Firm, with the spirit of "Honour Justice – Respect Goodwill",will always accompany clients on the journey to solve legal problems and disputes of rights in the field of marriage and family. If you are looking for a consensual divorce Lawyer, please contact Phong & Partners.

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