1. What is divorce?

Article 3.14 of the Law on Marriage and Family 2014 stipulates: “Divorce means termination of the husband and wife relation under a Court’s legally effective judgment or decision.”

Mutual Consent Divorce: A mutual consent divorce is when both spouses agree to divorce and settle all related issues amicably, including child custody, property division, and financial support. This type of divorce is generally faster and less complicated.

Unilateral Divorce: A contentious divorce occurs when spouses cannot agree on one or more issues, necessitating Court intervention. This type of divorce is more time-consuming and complex, as the Court must make decisions on disputed matters.

In addition, divorce involving foreign elements refers to cases where at least one spouse is a foreigner or an overseas Vietnamese or where the marriage was established, changed, or terminated under foreign laws. This can include:

• Divorces between a Vietnamese citizen and a foreigner (who lives in Ho Chi Minh city);
• Divorces between foreigners residing in Ho Chi Minh city.
• Divorces between Vietnamese citizens where the marriage was governed by foreign laws or involved foreign property.

2. In what cases does the Court adjudicate a divorce in Ho Chi Minh city?

While a divorce petition can be initiated by both spouses, one spouse, or even a third party, not everyone is legally entitled to do so.

According to Article 51 of the Law on Marriage and Family 2014, the following individuals have the right to file for divorce:

• Both spouses or either spouse: Both parties in a marriage, or either one individually, can petition the Court for a divorce.
• Parents or other relatives: If a spouse is suffering from a mental illness or other condition that prevents them from understanding or controlling their actions, and they are also a victim of domestic violence perpetrated by their spouse that has severely impacted their life, health, or mental state, their parents or other relatives can file for divorce on their behalf.

3. In what cases does the Court refuse to adjudicate a divorce in Ho Chi Minh city?

Under the provisions of Clause 3, Article 51 and Article 56 of the Law on Marriage and Family 2014, a divorce is not permitted in the following cases:

• Lack of evidence indicating that domestic violence or serious marital misconduct has caused the marriage to collapse beyond repair, rendering continued cohabitation impossible and defeating the purposes of marriage.
• A husband shall not be entitled to file for divorce if his wife is pregnant, has recently given birth, or is nursing a child under 12 months of age.
• A divorce petition shall not be granted if either spouse is reported missing but no declaration of absence has been issued by the Ho Chi Minh People’s Court.
• Where either spouse is suffering from a mental illness or other ailment that renders them incapable of comprehending or controlling their actions, the Ho Chi Minh People’s Court shall not grant a divorce if one of the following conditions is met:

• The party filing for divorce is not a parent, guardian, or other relative of the incapacitated spouse.
• There is no evidence of domestic violence inflicted by the other spouse that has severely impacted the life, health, or mental state of the incapacitated spouse.

4. How is child custody adjudicated in a divorce in Ho Chi Minh city?

Under Article 81 of the Law on Marriage and Family 2014, child custody after divorce is determined as follows:

• The parties have reached an agreement regarding the custody of the child and the rights and obligations of each party towards the child after the divorce. The Ho Chi Minh People’s Court has approved this agreement, and the parties are obligated to strictly comply with the terms as recognized by the Vietnam People’s Court.
• In the event that the spouses are unable to reach an agreement, the Ho Chi Minh People’s Court shall render a judgment regarding the person who shall have direct custody of the child, with the best interests of the child being the paramount consideration.

Several principles guide Ho Chi Minh People’s Courts in determining child custody arrangements. These include:

• Priority of child custody for mothers in relation to infants: Children under 36 months of age are generally awarded to the mother's custody, unless the mother is unable to provide adequate care, nurture, or education for the child, or unless the parents have reached a different agreement that is in the child's best interests.

• Child's Opinion: For children aged seven years or older, the Ho Chi Minh People’s Court is required to consult the child's preference regarding the parent they wish to live with before making a decision.
• Financial Circumstances: The Ho Chi Minh People’s Court will consider the financial capabilities of both parents, including their income, employment, and housing arrangements, to ensure the child's well-being and development.
• Emotional and Psychological Factors: Factors such as the parents' history of caregiving, moral character, lifestyle, and the duration of their involvement in the child's life are assessed to determine the most suitable custodial parent.

After carefully considering all relevant factors, the Ho Chi Minh People’s Court will decide who will be granted custody of the child.

5. What are the principles of dividing joint property in a divorce in Ho Chi Minh city?

Under Vietnamese law, the principles governing the division of joint property upon divorce are as follow:

• The division of property is determined by the agreement between the parties; if no agreement is reached, the Ho Chi Minh People’s Court will resolve it at the request of either spouse or both spouses.
• The joint property of the husband and wife is divided equally, taking into the following factors:
  • The circumstances of the family and each spouse.
  • Each spouse's contributions to the creation, maintenance, and development of joint property should be considered. Household labor is also recognized as income-generating work.
  • The protection of the legitimate interests of each party in production, business and occupation so that both parties have the conditions to continue earning income.
  • The fault of each party in violating the rights and obligations of the husband and wife.

6. Which authority has jurisdiction to adjudicate divorces with foreign elements in Ho Chi Minh city?

A divorce involving a foreign party or a party residing abroad is considered a divorce with foreign he jurisdiction to settle divorces with foreign elements in Ho Chi Minh city is People’s Courts of province level (specifically Ho Chi Minh People’s Court),  as follows:

• If a plaintiff does not know the defendant's place of residence, work, or headquarters, a plantiff can request the Court where defendant last resided, worked or where the defendant has settled assets.
• If a defendant does not have the residence, workplace, a plantiff can request the Court where you reside, work to settle.

7. What are the legal procedures for adjudicating divorces involving foreign elements in Ho Chi Minh city?

For Mutual Consent Divorce:

Step 1: Prepare the application for mutual consent divorce

Mutual consent divorce is a civil matter; for the Court to process it, both spouses must prepare the following documents:

• Mutual consent divorce application form;
• Original marriage registration certificate;
• The ID cards of both the husband and the wife (certified copy);
• Registration book of both the husband and the wife (certified copy);
• The children’s birth certificates;
• Documents proving ownership of joint assets;

Step 2: File the application for mutual consent divorce at the competent People’s Court

The filing of the application is carried out as follows:

• If both spouses are residing in Ho Chi Minh city and there is no foreign element: File the application at the district Court where the husband or wife resides.
• If either the husband or the wife is abroad, or the divorce involves foreign elements: File the application at the Ho Chi Minh People’s Court

Then, submit the application directly to the Ho Chi Minh People’s Court or by post.

Step 3: Paying Court fees

• If the application is eligible, the judge will notify the couple about the fee payment, and both spouses must complete the process within 5 days.
• Within 3 days of acceptance, the parties will receive notification about how to proceed with the mutual consent divorce application.

Step 4: Prepare to review the application

The Ho Chi Minh People’s Court will review the application and conduct a public hearing to address the request for mutual consent divorce.

The preparation period for reviewing the application is one month from the date the case is accepted. During this time, the Court will conduct mediation.

During this process, the judge will mediate to:

• Reconcile the couple.
• Explain the rights and responsibilities of spouses and parents towards their children.
• Clarify support obligations and other matters related to marriage and family.

Step 5: Issuing a decision to recognize a mutual consent divorce request

• If the couple reconciles during mediation, the Court will dismiss the mutual consent divorce case.
• If the mediation is unsuccessful, the Court will grant the mutual consent divorce. The marriage will end on the date the decision is recognized.

For Unilateral Divorce:

Step 1: Filing for divorce

The documents required to proceed with a unilateral divorce in Ho Chi Minh city include:

• Original marriage registration certificate
• Proof of residence/temporary residence of the Vietmese and foreign parties (if they are temporarily residing in Ho Chi Minh city)
• National ID card or passport of the Vietnamese party
• Copy of the foreign party’s identification documents (if available)
• Birth certificate of any children if there are children involved
• Documents proving assets/debts if there are shared assets or debts
• Other necessary documents specific to the case

According to legal regulations:

• If the foreign husband is in Ho Chi Minh City, the Ho Chi Minh People's Court has jurisdiction over the unilateral divorce.
• If the foreign husband is abroad, the provincial-level Court where the wife has her permanent residence or temporary residence will have jurisdiction to handle the case.

Then, submit the application directly to the Ho Chi Minh People's Court or by post.

Step 2: The Court reviews and accepts the application.

The Ho Chi Minh People’s Court reviews and accepts the application.

To have the Court process your divorce application, keep in mind:

• File the divorce application following the guidelines outlined below.
• Make sure all required documents are complete and accurate, without any mismatched information.
• Pay the advance Court fees as instructed by the Court and submit the receipt.

Step 3: The Court processes the case.

The Ho Chi Minh People's Court follows a specific procedure in handling unilateral divorce cases with a foreign spouse as follows:

• First: Summon both spouses to take statements and opinions.
• Second: The Court verifies and collects relevant documents and evidence.
• Third: The Court holds a mediation session and checks the submission, review, and disclosure of evidence.
• Fourth: The Court conducts the trial of the case. This is the stage where the Court reviews all the information and evidence gathered and hears from both parties, including their respective arguments

8. How much does a divorce cost in Ho Chi Minh city?

Under Clause 5, Article 27 of Resolution No. 326/2016/UBTVQH14, apart from the first instance civil Court fee of VND 300,000, the involved parties shall also cover the first-instance Court fee for the part of the disputed property as in the case of a civil case with monetary value for the part of the property to which they are entitled.

Court fees in marriage and family disputes according to normal procedures are prescribed in the table below:

According to Article 25.1 of Resolution 326/2016-UBTVQH14, the divorce petitioner, the plaintiff is obliged to pay the fee advance by the above regulations.

9. How long does it take to complete divorce proceedings in Ho Chi Minh city?

For unilateral divorce: The process typically takes about 4-6 months from the date the Court accepts the divorce filing. This duration may be extended if there are complications such as missing documents, the need for additional evidence, or complex disputes.

For mutual consent divorce: According to the provisions of the Civil Procedure Code 2015, the resolution time for mutual consent divorce is approximately 2 months depending on the specific case.

10.How to find a qualified Divorce Lawyer in Ho Chi Minh city ?

At Phong & Partners Law Firm, we determine service quality and client satisfaction as our guiding principles. Phong & Partners Law Firm operates for the philosophy of "Honour  justice - Respect goodwill" with enthusiasm, passion, sense of responsibility and always puts the word "HEART" in the profession first.

We are committed to providing Divorce Law services for Foreigners in Ho Chi Minh city and Vietnamese with the best quality of service. Depending on the complexity, scale of each case as well as the Clients's needs, we will evaluate and offer appropriate service fees, ensuring all agreements with Clients are always clear and transparent.

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