Marriage can be performed at the Embassy, but can divorce be processed there as well? In the following article, Luat Kim Bang will answer for readers the topic: Divorce procedures for spouses residing abroad?

1. What is an Embassy?

Pursuant to Clause 2, Article 2; Clause 1, Article 4 of the Law on Overseas Representative Missions of Vietnam 2009 (amended 2017). Overseas representative missions of Vietnam include:

• Diplomatic missions;
• Consular missions;
• Representative missions to international organizations.

An Embassy is the diplomatic representative mission of one country in another, established when two countries have diplomatic relations and agree to set up diplomatic bodies.

An Embassy is always located in the capital of a country. Therefore, all Embassies of other countries in Vietnam are located in Hanoi, and Vietnam’s Embassies are always located in the capital cities of host countries.

2. Can divorce procedures be resolved at the Embassy?

Client Question: Hello Lawyer. I am a Vietnamese citizen. In 2021, I and my husband, a Chinese national, registered our marriage at the Embassy. To date, our life has frequent conflicts due to cultural and language barriers and differences in life perspectives, leading to serious conflict.

Now we have agreed to implement divorce procedures. So, I would like to ask, can we resolve the divorce procedure with a Chinese national at the Embassy?

Lawyer’s Advice:

Pursuant to Joint Circular No. 02/2016/TTLT-BNG-BTP. The Embassy has the authority to register marriages. Marriage registration is valid within the territory of Vietnam but not necessarily abroad, unless Vietnam and the host country have a judicial assistance agreement. However, this regulation does not mean the Embassy has the authority to resolve divorce cases.

According to Clause 14, Article 3 of the Law on Marriage and Family 2014: “Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of the Court.”

Thus, under Vietnamese law, divorce is resolved by a competent People’s Court. Since you are married to a Chinese national, this is considered a divorce involving foreign elements. Therefore, based on Article 37 of the Civil Procedure Code 2015, the competent court to resolve your divorce case is the provincial-level People’s Court.

3. Regulations on divorce procedures involving foreign elements.

Client Question: Hello Divorce Lawyer! I have a problem I hope the Lawyer can answer. I and my husband married in 2017. My husband is Korean, and I am Vietnamese. We registered our marriage in Korea and have not completed any procedures in Vietnam. During the pandemic outbreak around 2020, I returned to Vietnam. Since then, husband and wife have been apart, and feelings have cooled. After some thought, we decided to divorce.

However, my husband is very busy in Korea and cannot return to the Vietnamese Court for procedures. I currently want to quickly end this marriage. Therefore, I decided to perform the divorce procedure by myself. So, if my husband does not return to Vietnam, can I perform the procedure? Does Vietnamese law allow divorce in the absence of one party? I hope the Lawyer can advise me, thank you!

Preparation and submission of foreign-element divorce files:

After you prepare all the necessary papers in the foreign-element divorce application file, citizens can submit the divorce file to the competent Court via one of the following methods:

• Submit directly at the Court;
• Send via courier services;
• Submit online through the Court’s e-portal.

Note: If the two parties registered their marriage under foreign law and want a divorce in Vietnam, they must legalize the Marriage Certificate via the consulate and record it in the registration book at the Department of Justice before filing for divorce at a competent Court in Vietnam.

Reception, review, and case acceptance:

After the Court receives the divorce file, the Court will review it. If the Divorce Petition is not in the correct form or lacks sufficient content, the Court will notify the petitioner to request amendment or supplementation.

After receiving a divorce file that meets legal standards. If it is determined that the case falls under the Court’s jurisdiction, the Judge must immediately notify the petitioner so they can come to the Court to fulfill the obligation of paying the court fee advance. After the petitioner pays the advance, they send the receipt back to the Court so the Court can issue a decision to accept the foreign-element divorce case.

Mediation for foreign-element divorce at Court:

For recognition of mutual consent divorce: In case after mediation for a foreign-element divorce, the spouses agree to reconcile, the Judge issues a decision to suspend the resolution of their divorce request. If reconciliation fails, the Judge issues a decision recognizing the consent divorce and the agreement of the parties under Article 212 of the Civil Procedure Code 2015 when all of the following conditions are met:

• Both parties are truly voluntary in the divorce;
• Both parties have reached an agreement on: division or non-division of common property; the looking after, nurturing, caring for, and educating children; division of common debt;
• The agreement must ensure the legitimate interests of the wife and children.

However, in cases where reconciliation fails and the parties cannot agree on the division of property or child custody but still want a divorce, the Court suspends the civil matter of recognizing consent divorce and transfers it to the acceptance of a divorce lawsuit.

For unilateral divorce: If the parties reach an agreement on the issues to be resolved in the divorce case, the Court prepares a successful mediation report. After 07 days from the date of the report, if neither spouse changes their mind, the Court issues a decision recognizing the consent divorce. This decision takes effect immediately and cannot be appealed under appellate procedures. The divorce procedure is considered complete when the decision is issued.

Opening the Court Hearing:

After performing valid notification procedures regarding the trial time, the Court must open the hearing according to the time and location set in the Case Acceptance Notification, with the composition of proceeding officers and participants as stated in the Decision to bring the case to trial.

Other post-trial tasks:

Some tasks that may be performed after the trial include:

• First, correction and supplementation of the judgment: Only performed when errors in spelling or data due to confusion or miscalculation are discovered.
• Second, issuing judgment extracts and sending the judgment: Within 03 working days from the end of the trial, parties are issued extracts. Within 10 days from the date of sentencing, the Court must send the judgment to the parties and the Procuracy of the same level.
• Third, appealing the judgment or decision: Under Article 479 of the Civil Procedure Code 2015, parties in Vietnam have the right to appeal within 15 days. For parties abroad not present at the trial, the limit is 01 month. If notification fails and trial is in absentia, the right to appeal is within 12 months.

The above are the basic contents of foreign-element divorce procedures. However, each case is different. Readers can contact the Divorce Lawyer via Hotline Phone/Zalo: 034.540.6523 for specific advice.

4. Obtaining confirmation for divorce at the Embassy.

Client Question: Hello Lawyer! I have a question. I want to divorce my husband in Vietnam while I am residing in Japan. We have agreed on all issues. I read online that I must send files with Embassy confirmation to Vietnam. How is this done and how much does it cost?

Lawyer’s Advice:

Most foreign-element divorce cases where the party is abroad often do not have the conditions to return to Vietnam for procedures at the Court, leading to cases of divorce in the absence of one party. However, if you want the divorce case to be resolved quickly, the person abroad can send their documents and opinions to the Vietnamese Court to request a trial in absentia.

At that time, the spouse abroad needs to apply for confirmation to prepare a divorce file at the Vietnamese Embassy. This procedure is commonly called signature authentication.

Accordingly, the spouse restates their opinion in written form and follows these steps:

• Step 1: Print the document to be sent to the Vietnamese Court on A4 paper. Note: The spouse abroad DOES NOT NEED TO SIGN THE DOCUMENT YET.
• Step 2: Bring the documents needing confirmation to the Vietnamese Embassy or Consulate in the host country. Upon arrival, the spouse presents their passport and visa and provides the documents to the official to perform the “Signature Authentication” procedure.
• Step 3: When the document is presented, the spouse is then allowed to sign the document in the presence of the official. Wait for the Embassy/Consulate to stamp the document and send it back to Vietnam.
• Step 4: Remember to check if the information recorded by the Embassy/Consulate in the confirmation is correct.
• Step 5: After completing the procedure, the spouse sends the document to the Vietnamese Court.

The cost of applying for divorce confirmation at the Embassies of different countries is not the same. This cost can range from 500,000 VND to 1,000,000 VND. When performing the procedure, customers will have to pay in the currency of the host country.

Can I divorce if I cannot go to the Embassy for confirmation? Clause 1, Article 2 of Decree No. 111/2011/ND-CP provides for the legalization of papers and documents as follows: “Consular legalization is the certification by a competent Vietnamese authority of the seal, signature, and title on foreign papers and documents so that those papers and documents can be recognized and used in Vietnam.”

According to Vietnamese law, consular legalization does not require the person in need of legalization to perform the procedure themselves. Therefore, if a party cannot go to the Embassy to perform consular legalization procedures for their divorce, they can authorize Luat Kim Bang via hotline: 034.540.6523 (Zalo available) to perform the legalization at the Embassy.

That is for the Consular Legalization procedure. In the case of signature authentication in the divorce file, the spouse must appear directly at the Embassy/Consulate. Because the nature of this act is to confirm that the petitioner knows, has read, understands clearly, and agrees to sign the application under the witness of an official, the petitioner must perform it directly and cannot authorize another person.

5. Can I divorce if one party is residing illegally abroad?

Client Question: Hello Lawyer. Currently, my husband is residing illegally in China. After being abroad for a while, he has another woman there. Being so discouraged, I proposed a divorce; I called several times asking him to return for divorce procedures, but he refused. So, Lawyer, may I ask if I can file for divorce when one party is residing illegally in China?

Lawyer’s Advice:

Pursuant to the provisions of the law on marriage and family. Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of the Court. According to the information you provided, your husband has a new partner in China; with this circumstance, you can unilaterally divorce because your husband seriously violated the rights and obligations of husband and wife, making the marriage fall into a serious state, common life cannot be prolonged, and the purpose of the marriage is not achieved as prescribed in Article 56 of the Law on Marriage and Family 2014.

However, your husband is currently residing in China. Therefore, during the process of resolving the case, the Court will perform judicial entrustment to China according to the provisions of the law to take your husband’s testimony regarding your divorce lawsuit request.

In case the entrustment yields no results, the Court will go to the locality to verify and take opinions from close relatives in the family to have grounds for resolving the case.

Accordingly, 02 cases may occur as follows:

• The Court brings the case to trial: If through your husband’s relatives there are grounds to determine that your husband still has contact with relatives in the country but their relatives do not provide your husband’s address or news to the Court, nor do they comply with the Court’s request to notify your husband to send a testimony back, this is considered a case where your husband: intentionally hides the address; refuses to declare; refuses to provide necessary documents. If the Court has requested for the second time and your husband’s relatives still refuse to provide the address or news to the Court, as well as refuse to comply with the Court’s request to notify your husband, the Court will bring the case to trial in your husband’s absence according to general procedures.
• The Court suspends the resolution of the case: In case you cannot provide your husband’s address in China, and the Court also cannot determine your husband’s address, and the verification through your husband’s relatives also yields no results, the Court will suspend the resolution of the case.

Lawyer consulting on resolving divorce procedures at the Embassy.

As one of the leading units providing divorce services in Vietnam, Luat Kim Bang – Hotline: 034.540.6523 (Zalo available) is ready to support you in performing relevant tasks to implement foreign-element divorce procedures and apply for confirmation papers at the Embassy as follows:

• Consultancy on foreign-element divorce files and procedures.
• Providing and guiding the drafting of lawsuits and divorce petitions with foreigners.
• Supporting the collection of missing foreign-element divorce files and documents.
• Supporting the legalization of documents at competent authorities.
• Representing the submission of files and contacting the competent Court to promptly complete divorce procedures.
• Participating in resolving divorce procedures to gain child custody and divide the common property of husband and wife.
• Consulting and supporting the implementation of procedures to request recognition of foreign divorce judgments or decisions in Vietnam.