|
THE
COUNCIL OF JUDGES
SUPREME PEOPLE'S COURT
-------
|
THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
|
|
No.
01/2024/NQ-HDTP
|
Hanoi,
May 16, 2024
|
RESOLUTION
ON
GUIDELINES FOR APPLICATION OF CERTAIN LEGAL REGULATIONS ON RESOLVING MARRIAGE
AND FAMILY CASES
THE COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT
Pursuant to the Law on Organization
of the People's Court dated November 24, 2014;
Pursuant to the Law on Marriage
and Family dated June 19, 2014;
Pursuant to the Civil Code dated
November 24, 2015;
Pursuant to the Civil Procedure
Code dated November 25, 2015;
Pursuant to Resolution No.
326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National
Assembly on court fees and charges, exemption, reduction, management and use
thereof;
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
Upon receiving opinions from the
Director of the Supreme People's Procuracy and the Minister of Justice,
HEREBY RESOLVES:
Article 1. Scope
This Resolution guides the
application of certain legal regulations on resolving marriage and family cases.
Article 2. The right to petition
for divorce specified in Clause 3, Article 51 of the Law on Marriage and Family
1. “pregnant”
as defined in Clause 3 of Article 51 of the Law on Marriage and Family
refers to the period during which the wife carries a fetus and is determined by
a competent medical facility, until the time of delivery or termination of
pregnancy.
2. “has
given birth” as defined in Clause 3 of Article 51 of the Law on Marriage
and Family refers to any of the following circumstances:
a) The wife has given birth but has
not raised the child for a period from the time of birth to the time the child
is under 12 months old;
b) The wife has given birth but the
child dies within 12 months of birth;
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
3. The
husband may not petition the court for divorce within twelve (12) months
following the wife's childbirth as guided at Points a and b, Clause 2 of this
Article or the date of termination of pregnancy as guided at Point c, Clause 2
of this Article.
4. In
case the wife is pregnant or has given birth, the husband shall not have the
right to petition for divorce, regardless of whom the wife is pregnant or has
given birth to.
5. In
case the wife is raising a child under 12 months of age, the husband shall not
have the right to petition for divorce, regardless of whether the child is a
biological child or an adopted child.
6. In
case of surrogacy for humanitarian purposes, the husband's right to petition for
divorce is determined as follows:
a) The surrogate's husband does not
have the right to petition for divorce when his wife is pregnant, has given
birth, or is raising a child under 12 months old;
b) The intended mother’s husband does
not have the right to petition for divorce when his wife is raising a child
under 12 months old or when the surrogate mother is pregnant, has given birth,
or is raising a child under 12 months old.
Article 3. Divorce by mutual
consent stipulated in Article 55 of the Law on Marriage and Family
1. "both
spouses request a divorce" specified in Article 55 of the Law on
Marriage and Family is the case where both spouses sign a joint application for
recognition of mutual consent divorce, child custody agreement, and property
division upon divorce; or one spouse files a divorce petition, and the other
spouse agrees to the divorce, child custody agreement, and property division
upon divorce.
2. Any
agreements between spouses regarding property division and child care,
upbringing, and education must comply with all applicable laws and social
ethics.
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
4. “Child
care, upbringing, and education” as specified in Article 55 of the Law on
Marriage and Family refers to the care, upbringing, and education of minor children
or adult children who are legally incapacitated, unable to work and do not have
the property to support themselves.
Article 4. Divorce at the
request of one spouse specified in Clause 1, Article 56 of the Law on Marriage
and Family
1. "A
spouse commits domestic violence acts" refers to a spouse engaging in
any act as defined in Clause 1 of Article 3 of the Law on Prevention and
Control of Domestic Violence.
2. "Seriously
infringes upon spousal rights and obligations’ refers to a violation against
the Law on Marriage and Family regarding the rights and obligations of spouses that
seriously infringes upon the rights and legitimate interests of the other
spouse.
For example: A spouse dissipates the family's property.
3. "seriously
deteriorates the marriage and makes their common life no longer impossible and
the marriage purposes unachievable" refers to one of the following
cases:
a) Absence of marital affection, for
example: Spouses do not love, respect, care
for, or support each other; spouses live separately and neglect each other;
b) Spouses have an adulterous
relationship;
c) Spouses insult each other, harm
each other's honor, dignity, reputation, mental loss or cause injury or damage
to each other's health;
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
Article 5. Restrictions on the
division of marital property in the event of the death of one spouse or
declaration of death by the Court as stipulated in Clause 3 of Article 66 of
the Law on Marriage and Family
The division of the estate seriously
affecting the life of the surviving spouse and the family outlined in Clause 3,
Article 66 of the Law on Marriage and Family and Article 661 of the Civil Code is
the case that the deceased leaves behind an estate, but if this property is
divided among the heirs, the surviving spouse and family will face significant
hardships in their daily lives, such as: lack
of housing, loss of the sole means of production, etc.
Example 1: Prior to the marriage,
Mr. A acquired a 35 square meter single-story house. Subsequently, Mr. A
married Ms. B and did not include the house in the couple's joint property. After the birth of a child, Mr. A passed away
without leaving a will. Mr. A's parents
requested the division of the inherited property, which is Mr. A's house. Ms. B
and the child have no other place to live and do not yet have the means to
establish another residence. The house cannot
be divided physically. In this case, the
division of the inherited property, which is the house, would have a
significant impact on the livelihood of Ms. B and the child.
Example 2: Mr. C and Ms. D married
and purchased a 35 square meter house. After the birth of a child, Mr. C passed
away without leaving a will. Mr. C's parents
requested the division of the inherited property left by Mr. C, which is Mr.
C's share of the house. Ms. D and the child
have no other place to live. Dividing the house physically would not ensure the
minimum living conditions for Ms. D and the child. Additionally, Ms. D lacks
the financial means to buy out the inheritance share of Mr. C's parents. In this case, the division of the inherited
property, which is Mr. C's share of the 35 square meter house, would have a
significant impact on the livelihood of Ms. D and the child.
Article 6. Settlement of child
custody upon divorce specified in Article 81 of the Law on Marriage and Family
1. In
considering "the children’s benefits in all aspects"
prescribed in Clause 2, Article 81 of the Law on Marriage and Family, the
following criteria must be objectively and comprehensively evaluated:
a) The conditions and capabilities
of the parents in caring for, raising, and educating the child, including the
ability to protect the child from abuse and exploitation;
b) The child's right to live with
the custodial parent, and to maintain a relationship with the non-custodial
parent;
c) The child's emotional bond and
closeness to each parent;
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
dd) Ensuring stability and
minimizing disruptions to the child's living environment and education;
e) The child's desire to live with
siblings (if any) to maintain emotional and psychological stability;
g) The child's preference to live
with either parent.
2. Collecting
opinions from minor children aged 7 years or older prescribed in Clause 2,
Article 81 of the Law on Marriage and Family and Clause 3, Article 208 of the
Civil Procedure Code must meet the following requirements:
a) Ensure a friendly and
appropriate environment that aligns with the child's psychological development,
age, and maturity level, allowing the child to express their opinion freely and
fully;
b) Do not seek the child's opinion
in the presence of the parents to avoid causing psychological pressure on the
child;
c) Do not coerce, cause pressure or
stress on the child.
3. "The
mother cannot afford to directly look after, care for, raise and educate the
child" as specified in Clause 3, Article 81 of the Law on Marriage and
Family refers to situations where the mother falls under one of the following
circumstances:
a) The mother suffers from a
serious illness or other severe illness that renders her unable to care for
herself or directly care for, raise, and educate the child;
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
b) The mother has a monthly income
lower than half the minimum regional wage in the place where the mother resides
and does not have any other assets to care for, raise, and educate the child;
c) The mother does not have the
minimum time required to directly care for, raise, and educate the child.
4. In
cases where the father's conditions for caring for, raising, and educating the
child are not better than the mother's as specified in Clause 3 of this
Article, the Court shall decide to entrust the child to the mother's direct
custody.
Article 7. Child support obligations
specified in Clause 2, Article 82 of the Law on Marriage and Family
1. If
the custodial parent does not request child support from the non-custodial
parent, the Court shall inform them that such a request is essential to
safeguard the child's legitimate rights and interests. If the court determines
that the custodial parent has the financial capacity and resources to provide
for the child's needs, and their decision to forego child support is voluntary,
the Court shall not compel the non-custodial parent to pay child support.
2. Child
support shall cover all expenses for the child's upbringing and education, as
agreed upon by both parents. If the parents cannot agree, the Court will
determine the child support amount based on the paying parent's income, ability
to pay child support, and the child's essential needs. The court-determined
child support amount cannot be less than half of the minimum regional wage in
the paying parent's place of residence, per month, for each child.
3. If
the parties cannot agree on the method of child support payment, the Court
shall determine the method as either monthly payments or another method that is
appropriate for the child's needs and interests, as well as the financial
circumstances of the parent obligated to pay child support.
4. The
obligation of parents to provide child support for their minor children or
adult children who are legally incapacitated, unable to work and do not have
the property to support themselves arises from the time the parents no longer
live together with the children or live together with the children but violate
their obligation to support the child, except where the parties have agreed
otherwise.
Article 8. Restrictions on
parents’ rights toward their minor children specified in Article 85 of the Law
on Marriage and Family
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
For example: A parent has been sentenced by a court with a legally effective
sentence to “Deliberate infliction of bodily harm” under Article 134 of the
Criminal Code against a minor child.
2. “Commits
acts of seriously breaching the obligations to look after, care for, raise and
educate the child” means the failure to fulfill or the improper and
incomplete fulfillment of the obligation to look after, care for, raise and
educate the child, causing serious harm to the child's legitimate rights and
interests or impairing the child's overall development.
For example: A parent abandons a minor child to fend for themselves or has no
financial capacities to support themselves, leading the child to commit theft.
3. “disperses
property of the child” means buying, selling, gifting, destroying or other
acts that damage the child's property without for the benefit of the child.
4. “leads
a depraved life” means a vile, evil, corrupt lifestyle that is contrary to
the good customs and traditions of the nation.
For example: A parent engages in prostitution.
5. “incites
or forces the child to act against law or social ethics” means the act of
inciting, seducing, promoting, or forcing the child by words, gestures, or any
means, leading the child to commit illegal and immoral acts.
For example: instigation, coercion leading to the child dropping out of
school, theft, fraud, illegal transportation of drugs.
6. The
Court may, on its own initiative or at the request of an individual, agency, or
organization, issue a decision to restrict the rights of parents in relation to
a minor child, in specific:
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
b) Prohibit a parent from managing
their minor child's property if the parent has engaged in any acts outlined in
Clause 3 of this Article;
c) Prohibit a parent from legally
representing their minor child if the parent has engaged in any acts outlined
in Clauses 1, 2, 3, 4 and 5 of this Article.
7. The
Court may shorten the period of restriction of parental rights in relation to a
minor child if the parent has completed at least half of the restriction period
as determined by the Court and during the restriction period, the parent has
not engaged in any of the acts specified in Clauses 1, 2, 3, 4, and 5 of this
Article.
Article 9. Determination of jurisdiction
for resolving marriage and family cases in some cases
1. A
marriage and family case involving real estate dispute in which the defendant
and plaintiff's place of residence or work specified in Points a and b, Clause
1, Article 39 of the Civil Procedure Code differs from the location of the
disputed real estate, the jurisdiction of the Court shall be determined in
accordance with points a and b of Clause 1 of Article 39 of the Civil Procedure
Code.
2. In
case where overseas Vietnamese parents file a lawsuit regarding the
modification of child custody after divorce, and the shared child is currently
residing in Vietnam, the jurisdiction for resolving the case shall belong to
the Vietnamese Court in accordance with Clause d of Point 1 of Article 469 of
the Civil Procedure Code.
Article 10. Resolution of
divorce cases involving defendants who are overseas Vietnamese with unknown
addresses
In divorce cases where a Vietnamese
citizen residing in Vietnam seeks a divorce from an overseas Vietnamese and can
only provide the defendant's last known address in Vietnam but cannot provide
the defendant's address abroad, the Court shall proceed as follows:
1. If
there is a basis to determine that the defendant has contacted with their relatives
in Vietnam, but these relatives do not provide the defendant's address to the
Court or fail to comply with the Court's request to inform the defendant, such
actions shall be considered intentional concealment of the defendant's address.
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
2. After
the trial, the Court shall send a copy of the judgment and decision to the
defendant's relatives for them to forward to the defendant. The Court shall
also publicly post a copy of the judgment and decision at the headquarters of
the People's Committee of the commune where the defendant last resided and
where the defendant's relatives reside, so that the parties may exercise their
right to appeal in accordance with the law of civil procedure.
Article 11. Court fees in
resolving marriage and family cases
1. The
litigants must bear court fees in disputes involving the determination of
paternity or maternity in accordance with Article 26 of "Resolution No.
326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National
Assembly on court fees and charges, exemption, reduction, management and use
thereof, except for disputes involving the determination of paternity or
maternity for minor children or adult children who are legally incapacitated persons.
2. In
a divorce case where the parties agree to divorce according to the provisions
of the law on marriage and family, it is necessary to distinguish as follows:
a) If the parties agree to divorce
before the first instance hearing, they shall bear 50% of the prescribed court
fees (each party shall bear 25% of the prescribed court fee);
b) If the parties agree to divorce
at the first instance hearing, they shall bear 100% of the prescribed court fees
(each party shall bear 50% of the prescribed court fee).
3. In
cases where the parties voluntarily agree to divorce before the first instance
hearing but fail to reach an agreement on child custody and property division,
and the Court conducts a trial and issues a first instance judgment, the
parties shall bear 50% of the prescribed court fees for the divorce request (each
party shall bear 25% of the prescribed court fee); regarding property
relations, the court fee each party shall bear shall correspond to the value of
the property portion they are entitled to as per the law on court fees.
Article 12. Entry into force
1. This
Resolution is passed by the Council of Judges of the Supreme People's Court on
April 24, 2024 and comes into force as of July 1, 2024.
...
...
...
Please sign up or sign in to your
TVPL Pro Membership to see English documents.
ON
BEHALF OF THE COUNCIL OF JUDGES
CHIEF JUSTICE
Nguyen Hoa Binh