Resolution of divorce disputes in Ho Chi Minh City.

Nowadays, divorce has gradually become a concerning and increasingly common issue, leading to a series of disputes, including: disputes over marital affections during marriage, disputes over child custody, disputes over property, and disputes over child support obligations.

In order to assist our valued Clients in better understanding the procedures and processes for resolving divorce disputes, BKC Law invites you to refer to the following useful information.

I. General Overview of Divorce

What is Divorce?

Pursuant to Clause 14, Article 3 of the Law on Marriage and Family 2014, it is stipulated as follows: “Divorce means the termination of the husband and wife relation by a legally effective court judgment or decision.” This is the most complete and accurate definition of the concept of divorce. In a broader sense, divorce also refers to the termination of rights and obligations between husband and wife in marital and family relations.

Who has the right to request a divorce?

Pursuant to law, either the wife or the husband has the right to request a divorce at the request of one party, as provided in Clause 1, Article 56 of the Law on Marriage and Family 2014 as follows: “When either spouse requests a divorce and conciliation at court fails, the court shall grant the divorce if there are grounds that the spouse has committed domestic violence or seriously violated the rights and obligations of the husband or wife, rendering the marriage in a grave state, the common life impossible to continue, and the marriage purposes unachievable.”

Spouses have the right to request resolution of divorce, but the husband’s right to request divorce is restricted pursuant to Clause 3, Article 51 of the Law on Marriage and Family 2014 as follows: “The husband has no right to request a divorce when his wife is pregnant, giving birth, or nursing a child under 12 months of age.” This provision aims to protect the vulnerable party, as women during pregnancy or postpartum may experience unstable psychological and physical conditions, making them prone to impulsive decisions and actions.

II. How is Property Divided upon Divorce?

Marital property includes common property and separate property.

Common Property:

Common property includes property created by the spouses, income from labor, production and business activities, yields and profits arising from separate property, and other lawful income during the marriage period, except for cases stipulated in Clause 1, Article 40 of the Law on Marriage and Family 2014; property jointly inherited or gifted to both spouses; and other property agreed by the spouses to be common property.

Land use rights acquired by the spouses after marriage constitute common property of the spouses, except where the spouse inherits or is gifted separately, or acquires through transactions using separate property.

For common property during the marriage, the spouses may agree to divide part or all of the common property, except where such division is invalid in one of the following cases: seriously affecting family interests; legitimate rights and interests of minor children, adult children lacking civil act capacity or unable to work and without property for self-support; or aimed at evading obligations such as child-rearing and support; compensation for damage; payment upon court declaration of bankruptcy; debt repayment to individuals or organizations; tax payment or other financial obligations to the State; or other property obligations under the Law on Marriage and Family 2014, the Civil Code, and relevant laws.

Consequences of dividing common property during marriage: the divided portion, as well as yields and profits arising from each party’s separate property after division, shall be separate property of each spouse, unless otherwise agreed. The remaining undivided property continues to be common property of the spouses.

After dividing common property during marriage, if circumstances change, the spouses still have the right to agree in a notarized document to terminate the effect of such division. Termination of the effect of common property division does not apply in cases of divorce; instead, a cancellation document must be made for unregistered property transfers.

Separate Property:

Separate property includes property owned by each person prior to marriage; property separately inherited or gifted during marriage; property divided separately to each spouse under Articles 38, 39, and 40 of the Law on Marriage and Family 2014; property serving the essential needs of each spouse; and other property deemed separate ownership under law.

Property formed from separate property of a spouse remains separate property of that spouse.

Spouses have the right to include or not include separate property into common property. Agreements on including property into common property must comply with prescribed forms if law requires specific formalities for transactions involving such property.

Where spouses choose a matrimonial property regime by agreement, such agreement must be made in writing, notarized or certified, prior to marriage. This is a significant new provision, more specific and clearer than the 2000 Law on Marriage and Family, which only allowed agreements on separate property.

In addition to the above forms, spouses may execute written agreements on separate property regime or written commitments regarding separate property of each spouse.

Marital property upon divorce shall be resolved pursuant to Article 59 of the Law on Marriage and Family 2014 as follows:

1. In cases of statutory matrimonial property regime, property settlement shall be by agreement of the parties; if no agreement is reached, upon request of one or both spouses, the Court shall resolve pursuant to Clauses 2, 3, 4, and 5 of this Article and Articles 60, 61, 62, 63, and 64 of this Law.

In cases of agreed matrimonial property regime, property settlement upon divorce shall follow such agreement; if the agreement is incomplete or unclear, corresponding provisions of Clauses 2, 3, 4, and 5 of this Article and Articles 60, 61, 62, 63, and 64 of this Law shall apply.

2. Common property of spouses shall be divided equally but taking into account the following factors:

a) Family and spousal circumstances;

b) Contributions of effort by each spouse to the creation, maintenance, and development of common property. Domestic labor of spouses is considered income-generating labor;

c) Protection of legitimate interests of each party in production, business, and profession to enable continued income generation;

d) Fault of each party in violating rights and obligations of husband and wife.

3. Common property shall be divided in kind; if division in kind is not feasible, division shall be by value; the party receiving property of higher value must pay the difference to the other party.

4. Separate property of each spouse remains under their ownership, except where separate property has been included in common property under this Law.

In cases of merger or mixing of separate and common property, if a spouse requests division, they shall be compensated for the value of their contribution to such property block, unless otherwise agreed by the spouses.”

Pursuant to the above provisions, the division of separate and common property is regulated specifically and clearly. The law prioritizes settlement by agreement of the parties. Only when no agreement is reached will the law apply. Common property is divided equally but consideration is given to family and spousal circumstances, contributions of each party, and fault in violating spousal rights and obligations.

III. Disputes over Child Custody upon Divorce

The law prioritizes agreement between spouses on the person directly raising the child. If no agreement is reached, the court shall decide to assign the child to one party for direct custody pursuant to Clause 2, Article 81 of the Law on Marriage and Family 2014 as follows: “Spouses shall agree on the person directly raising the child, obligations and rights of each party after divorce regarding the child; if no agreement is reached, the Court shall decide to assign the child to one party for direct custody based on the child’s best interests in all aspects; if the child is 07 years of age or older, the child’s wishes must be considered.”

What factors determine child custody upon divorce?

The Court is the sole authority to decide assignment of direct custody to one party, based on the child’s best interests in all aspects, typically considering the following factors:

Emotional factors: These affect the child’s future cognitive and social development. Therefore, careful consideration must be given to the moral character and ethics of the parents for proper child education. Regular care, attention, and education by the parent are also key to the child’s emotional development.

Material factors: Assessed based on each spouse’s financial capacity. This means income must ensure a full life for the child in all aspects, providing the best living conditions such as housing, education, healthcare, recreation, etc., and guiding the child’s social interactions and learning in a selective, healthy environment.

Stable residence factors: The spouse seeking custody must prove stable accommodation, such as documents evidencing land use rights and house ownership, or lease agreements, or proof of residence permission.

In resolving child custody disputes, the court prioritizes the child’s best interests, determining which party is best equipped to care for, nurture, educate, and provide the most favorable living environment for the child’s comprehensive physical and emotional development.

IV. Regulations on Child Support after Divorce

After divorce, one spouse directly raises the child, while the other, though not directly raising, remains obligated to support the child pursuant to Clause 2, Article 82 of the Law on Marriage and Family 2014 as follows: “Parents not directly raising the child have the obligation to support the child.”

Eligible recipients of support are stipulated in Article 110 of the Law on Marriage and Family 2014 as follows: “Parents have the obligation to support minor children, or adult children lacking working capacity and without property for self-support, in cases where they do not live together with the child or live together but violate child-rearing obligations.”

There is currently no specific regulation on the support amount; therefore, parties shall agree. If no agreement is reached, the court shall resolve pursuant to Article 116 of the Law on Marriage and Family 2014 as follows: “The support level shall be agreed upon by the obligor and the obligee or the obligee’s guardian based on the obligor’s income and actual capacity and the obligee’s essential needs; if no agreement is reached, the Court shall resolve.”

When determining support levels, the court considers the obligor’s regular actual income and the obligee’s essential needs based on living standards at the obligee’s residence. Living standards include ordinary expenses such as daily meals, housing (owned or rented), clothing, education, medical care, and other costs to ensure the obligee’s livelihood.

V. Documents Required for Filing a Divorce Dispute Lawsuit

Depending on the specific dispute, the required documents vary; however, to file a lawsuit with the court, a petition and supporting evidence must be prepared to prove infringement of legitimate rights and interests and the grounded nature of the claims. Typically, the following documents and evidence are required:

• Divorce petition
• Original marriage certificate (original)
• Residence confirmation certificate (certified copy)
• Birth certificates of children (copies)
• Citizen identity card (copies)
• Common property documents (copies)
• Documents on obligations (copies) (if any)
• Documents proving income and stable residence (copies)

► Procedure for Resolving Divorce Disputes

Step 1: The petitioner prepares the file and submits it to the competent People’s Court.

Step 2: The petitioner pays the advance court fee as prescribed by law.

Step 3: The court issues a notice of case acceptance.

Step 4: The court proceeds with procedures to resolve the petitioner’s request.

The above is BKC Law’s article on the procedures and processes for resolving divorce disputes. For prompt support, consultation, and execution of divorce procedures to protect your legitimate rights and interests, please contact our Lawyers immediately.

For free consultation on marriage and family law at BKC Law, you may contact our Lawyers via the following information:

Telephone: 0901 3333 41

Email: info@bkclaw.vn

District 1 Office: 9th Floor, Diamond Plaza Building, 34 Le Duan Street, District 1, Ho Chi Minh City

Binh Tan Office: 41 Ten Lua, Binh Tan District, Ho Chi Minh City