Divorce with the missing person

A person being out of contact is different from a court formally declaring that person missing. Where the legal conditions for a declaration are met, that decision can become relevant to a subsequent divorce request under Vietnamese family law.

Procedures to carry out divorce with the missing person is quite complicated and time-consuming. Law on marriage and family stipulated this issue clearly. 

What is divorce?

According to Clause 14, Article 3, Law on Marriage and Family 2014; divorce is defined following: 

“Divorce means termination of the husband and wife relation under legally effective judgment or decision of the Court.” 

Thus, it can be understood that when the judgment or decision of the Court is legally effective, the husband and wife relation will be terminated. 

Types of divorce:

Law on marriage and family 2014 stipulates 02 types of divorce. Specifically: 

Consensual divorce:

According to Article 55, Law on marriage and family 2014: 

“When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children. If the spouses fail to reach agreement or have reached an agreement which fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.” 

This is the form when both husband and wife decide to divorce and have reached an agreement on the division of property, looking after, raising, caring for, and educating children. Accordingly, when applying for a voluntary divorce, both husband and wife must sign it.

Unilateral divorce:

According to Article 56, Law on marriage and family 2014: 

“When a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer possible and the marriage purposes unachievable.

When the spouse of a person who is declared missing by a court requests a divorce, the court shall permit the divorce.

For request for a divorce under Clause 2, Article 51 of this Law, a court shall permit the divorce if it has grounds to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.” 

Unilateral divorce is also known as divorce at the request of one party. This is a form in which a husband or wife requests a divorce when they see that their married life can no longer be maintained, the marital relationship is in serious condition due to domestic violence or because the other person violates his/her obligations...

Divorce with the missing person is one of unilateral divorce cases. 

>>> Read more: How long does a unilateral divorce take?

>>> Read more: Unilateral divorce procedures in Vietnam

Divorce in case of the spouse is declared missing.

Divorce with a missing person is a special procedure. Therefore, before asking for a unilateral divorce with the missing person, you need to carry out the following procedures: 

First, ask the Court to declare the missing person

Being out of contact is different from a judicial declaration that a person is missing. A declaration requires the statutory conditions and search procedure. Where the spouse has been formally declared missing, Article 56(2) of the Law on Marriage and Family is relevant to the divorce request.

The Court will conduct the verification and carry out the procedures for notifying the missing person. After completing all procedures for notification of search and public posting, but still no information about the missing person, the Court will issue a decision declaring that person missing. 

Second, file the document for a unilateral divorce request.

After receiving the decision to declare the person missing, you proceed to the next step, which is to file a petition for unilateral divorce to the Court.  

Legal assistance should be assessed by its scope, the relevant experience and the quality of the advice. The court determines disputed outcomes, and neither the result nor a fixed completion date can be promised merely by engaging a lawyer.

Legal assistance can include assessing the file, identifying missing records and preparing the requests and evidence for the relevant procedure. The scope and practical next steps should be agreed clearly, without promising a court result or completion date.

How legal advice can assist

Specifically, after receiving all the information and documents provided by the client, our lawyers will conduct the following tasks:

• Research all information and records provided by the client.

• Consult, and discuss with clients the content of the file and the request to be resolved.

• Compose and prepare documents, they are necessary and correspond to the lawsuit request of the clients.

• Appointing Lawyers to work with the Court and in working sessions to protect the rights and interests of clients. 

• A lawyer can advise, prepare documents and help protect lawful rights within the agreed scope of work. Vietnamese civil procedure restricts representation by authorisation for the divorce itself, so a spouse should not assume that a power of attorney replaces required personal participation. Assistance with other matters must be assessed separately under the applicable rules.

• Publicize the processing of records, and regularly update information with clients so that the parties can monitor the work together.