1. Concepts related to unilateral divorce between Foreigners and Vietnamese in Da Nang

• What is separation? Currently, Vietnamese law does not have any regulations or any specific guidance on separation and cases of separation. However, it can be basically understood, separation is the case where a legally married couple no longer lives together but has not yet carried out legal procedures to terminate the marital relationship.
• What is divorce? According to the provisions in Clause 14, Article 3 of Law on Marriage and Family 2014: Divorce is the termination of the marital relationship according to the judgment, legally effective decision of the Court.
• What is mutual divorce? According to the provisions in Article 55 of  Law on Marriage and Family 2014, mutual divorce is the case where the husband and wife both request a divorce. If it is found that both parties really voluntarily divorce and have agreed on the division of assets, the care, nurturing, care, education of children on the basis of ensuring the legitimate interests of the wife and children, the Court recognizes mutual divorce; if not agreed or agreed but does not guarantee the legitimate interests of the wife and children, the Court will not resolve the divorce.
• What is unilateral divorce? Based on the provisions in Article 51, Article 55 and Article 56 of Law on Marriage and Family 2014, unilateral divorce, legal term is “divorce at the request of one party”, is understood as the case where one party, the wife or husband unilaterally requests the Court to resolve the divorce without the consent of the remaining wife/husband.
• What is unilateral divorce between Foreigners and Vietnamese in Da Nang? It is a procedure to request the competent People’s Court in Da Nang city to resolve unilateral divorce.

2. What cases are allowed to divorce unilaterally between Foreigners and Vietnamese in Da Nang?

Based on the provisions in Article 56 of Law on Marriage and Family 2014, the cases allowed to divorce unilaterally in Da Nang include:

• When the wife or husband requests a divorce and reconciliation at the Court is unsuccessful, the Court will resolve the divorce if there is a basis for the wife, husband to commit domestic violence or seriously violate the rights, obligations of the wife, husband causing the marriage to be in a serious situation, the married life cannot be prolonged, the purpose of the marriage is not achieved.
• In case the wife or husband of the person declared missing by the Court requests a divorce, the Court will resolve the divorce.
• In case there is a request for divorce as prescribed in Clause 2, Article 51 of Law on Marriage and Family 2014, specifically: “Parents, other relatives have the right to request the Court to resolve the divorce when the husband or the wife due to mental illness or other diseases that cannot perceive, control their behavior, at the same time is a victim of domestic violence caused by their husband, wife causing serious impact on their life, health, spirit” then the Court resolves the divorce if there is a basis for the husband, wife to commit domestic violence seriously affecting the life, health, spirit of the other person.

3. Which court resolves unilateral divorce between Foreigners and Vietnamese in Da Nang?

According to the provisions in Article 28 of Civil Procedure Code 2015, unilateral divorce between Foreigners and Vietnamese in Da Nang is one of the cases of disputes about marriage and family under the jurisdiction of the Court.
The People’s Court of Da Nang City: The People’s Court of Da Nang City, where the wife and/or husband resides or works, has jurisdiction to resolve requests for unilateral divorce in Da Nang with foreign elements (the wife/husband is living abroad, joint assets are abroad that the wife and husband request recognition…)

4. Guide to preparing a unilateral divorce between Foreigners and Vietnamese file in Da Nang

Before proceeding with the procedure for unilateral divorce between Foreigners and Vietnamese in Da Nang, the following documents need to be prepared:

(1) A lawsuit for divorce;
(2) Certified copy of the wife’s and husband’s ID card/passport;
(3) Certificate of wife and husband’s conflict (if any);
(4) Certified copy of the Marriage Registration Certificate (the original is better);
(5) Certified copy of the birth certificate of the common child (if requesting the Court to resolve);
(6) The petition expressing the wishes of the child over 7 years old (if any);
(7) Certified copy of documents on joint assets, joint debts (if requesting the Court to resolve).
Unilateral divorce form in Da Nang - Download here

5. Guide to unilateral divorce procedures between Foreigners and Vietnamese in Da Nang

Based on the provisions in Articles 190; 195; 196; 197; 208; 209; 220; 266 of Civil Procedure Code 2015, the order and procedures for unilateral divorce between Foreigners and Vietnamese in Da Nang are as follows:
Step 1: The plaintiff prepares the file according to the above guide; submits directly or sends by postal service to the Court with jurisdiction to resolve the case.

Step 2: After receiving the lawsuit and accompanying documents and evidence, if the case is is under the jurisdiction of the Court, the Judge immediately notifies the plaintiff to come to the Court to carry out the procedure for depositing the court fee in case the plaintiff has to deposit the court fee.
Within 07 days from the date of receiving the Court's notice of payment of court fee, the plaintiff must pay the court fee and submit to the Court a receipt for the court fee.

Step 3: The Judge handles the case when the plaintiff submits to the Court the receipt of depositing the court fee.
In case the plaintiff is exempted or does not have to deposit the court fee, the Judge handles the case when receiving the lawsuit and accompanying documents and evidence.

Step 4: Within 03 working days from the date of handling the case, the Chief Judge of the Court decides to assign the Judge to resolve the case. At the same time, the plaintiff and the defendant will be notified by the Judge in writing that the Court has handled the case.

Step 5: The plaintiff and the defendant attend the meetings to check the submission, access, publicize the evidence and reconcile at the Court; if the reconciliation is unsuccessful, the court will issue a decision on unsuccessful reconciliation and bring the case to trial.

Step 6: The Judge issues a decision to bring the case to trial, opens the first-instance court to resolve the unilateral divorce in Da Nang

Step 7: The Court issues a judgment in the name of the Socialist Republic of Vietnam to resolve the unilateral divorce procedure. In case the Court does not accept the request for divorce, the person requesting the divorce has the right to appeal for the higher Court to directly review the appeal according to the provisions of law.

6. Unilateral divorce between Foreigners and Vietnamese in Da Nang, how much is the court fee?

- First-instance court fee

• For disputes about marriage and family without a price bracket, the first-instance court fee is 300,000 VND.
• For disputes about marriage and family with a price bracket, depending on the value of the assets, the court fee to be paid will vary. The specific court fee is stipulated in the Court Fee and Fee Schedule issued together with Resolution No. 326/2016/UBTVQH14 stipulating the rates, exemptions, reductions, collection, payment, management and use of court fees and fees, as follows:

For disputes about civil, marriage and family with a price bracket, the court fee:

From 6,000,000 VND or less: 300,000 VND

From over 6,000,000 VND to 400,000,000 VND: 5% of the value of disputed assets

From over 400,000,000 VND to 800,000,000 VND: 20,000,000 VND + 4% of the part of the value of disputed assets exceeding 400,000,000 VND

From over 800,000,000 VND to 2,000,000,000 VND: 36,000,000 VND + 3% of the value of disputed assets exceeding 800,000,000 VND

From over 2,000,000,000 VND to 4,000,000,000 VND: 72,000,000 VND + 2% of the value of disputed assets exceeding 2,000,000,000 VND

From over 4,000,000,000 VND: 112,000,000 VND + 0.1% of the value of disputed assets exceeding 4,000,000,000 VND.

- In case the judgment is appealed, the appeal court fee is 300,000 VND.

7. Unilateral divorce between Foreigners and Vietnamese in Da Nang, who does have the right to raise children?

Based on the provisions in Article 81 of the 2015 Marriage and Family Law on the right to raise children after unilateral divorce, the wife and husband have the right to agree on who directly raises the child, the obligations and rights of each party after divorce for the child.
In case the wife and husband fail to reach an agreement, the Court decides to give the child to one party to directly raise based on the child’s interests in all aspects; if the child is 07 years old or older, the child’s wishes must be considered.
In case the child is under 36 months old, the child is given to the mother to directly raise, except in cases the mother is not capable of directly supervising, caring for, nurturing, and educating the child or the parents have other agreements suitable for the child’s interests.

8. Unilateral divorce between Foreigners and Vietnamese in Da Nang, how is the joint property divided?

Article 59 of Marriage and Family Law 2014 stipulates that in case the property regime of the husband and wife is according to the law, the resolution of the property is agreed by the parties; if not agreed, at the request of the wife, husband or both, the Court resolves according to the provisions of the law on marriage and family.
In case the property regime of the husband and wife is according to the agreement, the resolution of the property when divorcing is applied according to that agreement; if the agreement is not full, clear, the provisions of the law on marriage and family are applied correspondingly to resolve, in which:
- In case the joint property of the husband and wife is divided in half, the following factors must be taken into account:

a) The circumstances of the family and the wife and husband;
b) The contribution of the wife and husband to the creation, maintenance and development of the joint property. The labor of the wife and husband in the family is considered as income labor;
c) Protect the legitimate interests of each party in production, business and profession so that the parties can continue to work to create income;
d) The fault of each party in violating the rights and obligations of the husband and wife.

- The joint property of the husband and wife is divided by physical objects, if it cannot be divided by physical objects, it is divided by value; the party who receives the part of the property by physical objects with a higher value than the part they are entitled to must pay the other party the difference.
- The separate property of the wife and husband is under the ownership of that person, except in cases the separate property has been incorporated into the joint property as prescribed by the 2014 Marriage and Family Law.

9. Unilateral divorce between Foreigners and Vietnamese in Da Nang, how is the joint debt resolved?

In case of unilateral divorce between Foreigners and Vietnamese in Da Nang city, Article 60 of the 2014 Marriage and Family Law stipulates the resolution of the rights and obligations of the husband and wife’s property to the third party when divorcing as follows:
"Article 60. Resolution of rights and obligations of husband and wife’s property to the third party when divorcing
The rights and obligations of the husband and wife’s property to the third party still have effect after the divorce, except in cases the husband and wife and the third party have other agreements.
In case of dispute over rights and obligations of property, apply the provisions in Articles 27, 37 and 45 of this Law and the provisions of the Civil Code to resolve."
Accordingly, when divorcing unilaterally between Foreigners and Vietnamese in Da Nang, in case the husband and wife and the third party do not have any other agreement, the husband and wife still have to continue to pay the debt to the third party after the divorce. In case of dispute over rights and obligations of property, apply the provisions stated in clause 2 of Article 60 above to resolve.

10. Some questions related to unilateral divorce between Foreigners and Vietnamese in Da Nang

(1) Do children have the right to inherit according to the law when their parents divorce?
https://phong-partners.com/cha-me-ly-hon-con-co-duoc-huong-thua-ke-theo-phap-luat

(2) If the court’s divorce decision is not yet legally effective, can the wife inherit the husband’s estate? 
https://phong-partners.com/quyet-dinh-ly-hon-cua-toa-an-chua-co-hieu-luc-thi-vo-co-duoc-huong-di-san-thua-ke-cua-chong

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