Procedures for divorce involving foreign elements

Question (a Vietnamese citizen): I got married to a Vietnamese bearing foreign nationality and we have a son also having foreign nationality. We have been living abroad for two years. My son and I want to go back to and settle in Việt Nam. Can we get divorced in Việt Nam? What are the procedures? Can my husband take my son away with him?

Answer:

1. Divorce procedures

According to Item 14 of Article 8 of the Law on Marriage and Family 2000 (the Law) and Article 9 of the Government's Decree 68/2002/NĐ-CP which is revised and supplemented by Decree 69/2006/NĐ-CP dated on July 21, 2006, your case is the marriage relationship involving foreign factors.

Thus, “Where a partner being a Vietnamese citizen does not reside in Việt Nam at the time of requesting the divorce, the divorce shall be settled according to the law of the country where husband and wife permanently co-reside; if they do not have a permanent co-residence place, the Vietnamese law shall apply” (Item 2 Article 104 of the Law).

At the time you request the divorce, you have been living permanently abroad for two years, so you have to obey marriage and family regulations of your permanent co-residence country.

If your case is dealt under the Vietnamese law, the competent bodies in charge of such divorces are provincial-level People's Courts (Article 102 of the Law). You are required to submit your divorce applications to a provincial People's Court which will proceed with the reconciliation first (Articles 87, 88 of the Law).

2. Rights to nurse, care for and raise children after divorce

Article 92 of the Law says:

“Husband and wife agree upon who shall directly rear their children, the rights and obligations of each party toward their children after divorce; if they fail to reach an agreement thereon, the Court shall decide to assign one party to directly rear the children, on the basis of the children’s interests in every aspect, if the children are aged full nine years or older, their aspirations must be taken into consideration.

In principle, all children under three years of age shall be assigned to their mothers for direct rearing, unless otherwise agreed upon by the two parties.”

Thus, at the moment of your divorce, if your child is less than 3 years old, your husband cannot take him away. However, your husband can bring the child with him if he has better conditions for the child and the child (aged full nine years or older) wants to live with his father.