Introduction
In the realm of family law, obtaining a divorce can be a complex and emotionally-charged process. However, when one party wishes to end the marriage on their own accord, known as unilateral divorce, the procedure presents unique challenges. This article aims to provide expert guidance on the four crucial steps involved in navigating through this type of divorce swiftly and efficiently.
Step 1: Understanding Unilateral Divorce and Eligibility
Unilateral divorce differs from mutual consent divorce in that it only requires one party’s request to proceed. According to Article 51 of the Marriage and Family Law, those eligible to file for unilateral divorce include:
- Either spouse or both together
- Parents or other concerned relatives in cases where one spouse suffers from mental illness, incapacity, or is a victim of domestic violence that poses serious threats to their physical, mental, or emotional well-being
Based on Article 56 of the same law, the Court will grant a divorce when there is substantial evidence of a severely deteriorating marriage, irreparable breakdown of the relationship, and when one spouse has engaged in domestic violence or seriously violated the rights and obligations of marriage such as love, faithfulness, respect, care, support, or cohabitation, except in cases where the wife is pregnant, giving birth, or breastfeeding a child under 12 months old.
Step 2: The Process of Filing for Unilateral Divorce
Step 2.1: Preparing the Documentation
To initiate the process of unilateral divorce, the requesting party must ensure that they have the necessary documentation, including:
- A duly completed divorce application form
- Original marriage certificate or a certified copy
- Certified copies of identification documents for both spouses
- Certified copy of the child’s birth certificate, if applicable
- Documents proving joint assets and a request for their division, if relevant
The requesting party must also provide any additional evidence, such as records of domestic violence or non-compliance with marital obligations, to support their case. Once all the required documents are prepared, they should be submitted to the competent Court as mentioned above.
Step 2.2: Submitting the Divorce Application
As per Article 39 of the Civil Procedure Code, the party filing for divorce must submit the application to the Court located in the jurisdiction of their residence or workplace. In cases involving foreign elements, such as the foreign residence of either spouse or foreign assets, the jurisdiction may fall under the Court of the province instead of the district.
Step 2.3: Case Review and Evaluation
Unilateral divorce proceedings follow the same procedure as any other civil case. In accordance with the Civil Procedure Code, the process includes various stages such as case preparation, trial, and judgment. Under normal circumstances, the divorce process typically takes a minimum of four months. However, complex cases or unforeseen circumstances may cause delays.
The Court must review the application within five working days of receiving it. If the application is deemed valid, the requesting party will be notified to pay an advance fee. Only upon payment of this fee will the Court officially accept the divorce application and proceed with the case (Articles 191 and 195 of the Civil Procedure Code).
Furthermore, alternative dispute resolution, known as mediation, is mandatory before a trial is conducted, unless it is deemed unnecessary, impossible, or the case falls under expedited procedure. If a mutual agreement is reached through mediation and no changes are made after seven days, the Court will issue a decision recognizing the agreement. This decision is immediately effective and cannot be appealed.
In cases where mediation fails or is not applicable, the Court will proceed with the trial.
Step 2.4: Trial and Final Judgment
After determining that mediation is not feasible or unsuccessful, the Court will schedule a trial and inform all parties involved of the date and location of the hearing. If the conditions for divorce are met, the Court will issue a judgment terminating the marriage.
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Step 3: Frequently Asked Questions about Unilateral Divorce
3.1: Can the Divorce Be Granted if One Spouse Is Absent?
Divorce proceedings cannot be delegated to others, but according to Article 228 of the Civil Procedure Code, the Court can still grant a divorce in the absence of one spouse under the following circumstances:
- The absent party has requested the Court to proceed with the divorce in their absence.
- The absent party has appointed a representative to appear in court on their behalf.
- The absence is due to unforeseeable events or obstacles beyond the party’s control.
If the absent party fails to appear for the first court summons, the Court will adjourn the hearing. However, upon a second summons, non-attendance will result in the Court proceeding with the trial in the absence of the absent party. If the requesting party is absent after two summons, their request for divorce will be considered withdrawn, and the Court will suspend further proceedings.
3.2: Unilateral Divorce When One Spouse Resides Abroad
Unilateral divorce becomes more complicated when one spouse resides abroad. Nonetheless, specific rules and guidelines address such cases.
If the husband resides abroad, the wife, who resides in Vietnam, may file a divorce petition with the provincial Court under Article 37 of the Civil Procedure Code. If the exact address of the husband abroad is unknown, information can be obtained from his relatives, as explained in Circular No. 253 issued by the Supreme People’s Court.
If the relatives refuse to provide the information after two court requests, the Court will proceed with the trial in absentia. The Court will then send a copy of the judgment or decision to the relatives, who are responsible for delivering it to the husband.
3.3: Child Custody in Unilateral Divorce
Unlike mutual consent divorce, where both parties can agree on child custody, unilateral divorce often involves disputes between parents regarding child custody. Under Article 81(2) of the Marriage and Family Law, if parents cannot agree on who will have custody of the child, the Court will take into account the best interests of the child, consider the child’s opinion if they are at least seven years old, and generally grant custody to the mother for children under 36 months old, unless she is unable to provide direct care.
In conclusion, custody will be awarded to the parent who can provide the best care based on the specific circumstances. The non-custodial parent will have visitation rights, and the terms and frequency of child support will be agreed upon by the parents.
Conclusion
Unilateral divorce presents its own set of challenges, surpassing the complexity of mutual consent divorce. To overcome the difficulties and achieve a swift resolution while avoiding unnecessary stress, it is crucial to seek the guidance and advice of reputable legal professionals experienced in family law.
Call 19006192 to contact Kienthucykhoa.edu.vn for assistance today. Our team of dedicated lawyers and legal experts will provide comprehensive answers and support for your unilateral divorce concerns.
For further inquiries or clarification about the unilateral divorce process, please reach out to us at 19006192. We are here to assist you.
