Divorce is the last option, and no one wants in a marriage relationship. The following is a summary of information that a person intending to divorce must know, especially about divorce procedures in 2020.
1. Who has the right to request a divorce?
Divorce is the termination of the husband and wife relationship according to the court’s legally valid judgment and decision.
According to Article 51 of the 2014 Law on Marriage and Family, persons with the right to request a settlement of divorce include:
– Wife, or husband, or both.
– Fathers, mothers, and other relatives when one partner cannot recognize and control their acts (also a victim of domestic violence by the other).
Note that a husband cannot divorce when the wife is pregnant, gives birth, or is nursing a child under 12 months of age. But if the wife is pregnant, giving birth or raising a child under 12 months old, she has the right to a court for a divorce.
2. Conditions for being allowed to request a divorce
A marriage can be terminated if both husband and wife agree or at the request of one party.
Accordingly, there are two forms of divorce, consensus divorce and one party sending unilateral divorce request.
* Conditions for consensus divorce:
– The two sides want to divorce.
– The two sides have agreed on a division of assets, child custody, support obligations, etc.
* Conditions for unilateral divorce:
– Husband and wife have acts of domestic violence.
– When a person seriously violates their rights and responsibilities, puts the marriage into a stalemate, and life together cannot last.
– The wife or husband is declared missing by the court.
– When one person is mentally ill (or other illness) and is a victim of domestic violence by the other person.
3. How to divide assets after divorce?
In principle, divorce is an agreement between husband and wife. The property after divorce is the same. If the two parties agree, the court will recognize that division of property.
In case the husband and wife cannot reach an agreement, the court will divide the property in half but based on the following factors:
– Current situation of family, wife, and husband.
– Contribution of husband and wife to the creation, maintenance, and development of the common property.
– Protect the legitimate interests of each party in production, business, and occupation so that they can continue to work and earn income.
– The fault of each party (violating the rights and obligations of wife and husband).
Article 59 of the 2014 Law on Marriage and Family specifies the division of property after divorce.
4. The issue of gaining the custody of children after divorce
One of the critical issues after divorce is to obtain care and support for your children. Article 80 of the 2014 Law on Marriage and Family stipulates that if both husband and wife agree on raising children, obligations, and rights of each party after divorce, the court will recognize that agreement.
On the contrary, if they cannot agree, the court will give their child to a party based on the child’s interests in all aspects. At that time, the recipient must prove that he/she is eligible to ensure all aspects of the child’s rights, such as economic and spiritual.
Note that when children are seven years of age or older, we must consider their wishes.
Besides, anyone who does not directly raise children will have to support. The two parties agree on the support level based on the income, the actual ability of the obligor, and the essential needs of the children.
5. Detailed guidance on divorce procedures 2020
– Prepare all kinds of documents
The required documents used in unilateral and consensus divorce are the same, including:
+ Marriage certificate (original).
+ Identity card of husband and wife (certified copy).
+ Child’s birth certificate (if there are shared children, certified copy).
+ Household registration book (copy certified).
+ Documents proving ownership of common property (if there is common property, certified copy).
If you do not keep the marriage certificate, you can contact the civil status office where you have registered the marriage to ask for a copy.
In case there is no identity card of the spouse, then submit another substitute identity document according to the instructions of the court.
The only difference between the two forms of divorce is in the content of the divorce application.
* If unilateral divorce, use the form issued together with Resolution No. 01/2017/NQ-HDTP (contact us for assistance with the template).
* If it is a consensus divorce, use the model of that application.
– Where should the divorce application be submitted?
According to Article 35 of the 2015 Civil Procedure Code, district-level people’s courts are competent to settle first-instance procedures for divorce.
* For a consensus divorce case
Article 55 of the 2014 Law on Marriage and Family stipulates that if a husband and wife agree to divorce, they can go through the procedure at the court (where the spouse resides).
Within three working days (from the date of receipt of the petition, documents, and accompanying evidence), the Chief Justice of the court will assign the Judge to resolve it.
* For a unilateral divorce case
Article 39 of the 2015 Civil Procedure Code provides that the court where the defendant resides has jurisdiction to resolve disputes over marriage and family (according to first instance procedure). Therefore, in the case of unilateral divorce, the court of the defendant’s residence will resolve the situation.
– How long does it take to settle divorce in 2019?
According to the 2015 Civil Procedure Code, the processing time for a consensus divorce lasts from two to three months from the date the court accepts the petition.
In the case of unilateral divorce, the processing time will be from four to six months. This period can be extended due to child custody and asset division disputes.
6. The legal cost for divorce cases
Resolution 326/2016/NQ-UBTVQH14 specifies the legal fees for divorce:
– The legitimate price for a divorce case without dispute over the property is VND 300,000.
– For cases involving disputes over estates, apart from the court fee of VND 300,000, the involved parties must pay the part for the disputed assets (determined according to the value of this property).