LEGAL CONSIDERATIONS WHEN UNILATERAL DIVORCE
Marriage and family life are always a sensitive and complicated issue. When cohabitation no longer brings happiness, the marriage is no longer meaningful and cannot be maintained, divorce is one of the necessary solutions to resolve the issues. However, not every divorce proceeds smoothly and quickly, especially in the case of unilateral divorce requests without mutual consent by one party. In this article, TNTP will analyze the basic legal issues of the Marriage and Family Law regarding unilateral divorce provisions to help parties clearly understand their rights and obligations in the marital relationship.
1. Cases of unilateral divorce
Unilateral divorce is a case in which only one of the spouses or the father, mother, or relatives of either party requests to terminate the marital relationship at the Court. Article 56 of the 2014 Law on Marriage and Family stipulates three cases of unilateral divorce as follows:
The first case: During the cohabitation period, the husband and wife cannot avoid conflicts, however conflicts occur frequently and there are grounds indicating that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife causing the marriage which seriously deteriorates the marriage, their common life no longer impossible and the marriage purposes unachievable, then the concerned spouse has the right to request a divorce. After conciliation, if the parties do not come to a common result, the competent Court will adjudicate the divorce;
The second case: The spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse. At that time, the father, mother or other relatives of the spouses have the right to request the Court to resolve the divorce. The court will base on grounds that indicate the domestic violence committed by one spouse seriously harms the life, health or spirit of the other to resolve the divorce;
The third case: The husband or wife has been missing for some reason for many years and has been declared legally missing by the Court, the spouse of the declared missing person has the right to request the Court to resolve the divorce.
2. Individuals Authorized to Request Unilateral Divorce
Unlike the case of mutual consent divorce where mutual consent of both parties is required, unilateral divorce requests do not necessarily have to originate from the husband or wife but can be made by other individuals authorized by the law to exercise this right in Court.
Pursuant to the provisions of Article 51 and Article 56 of the 2014 Law on Marriage and Family, people with the right to request unilateral divorce include:
(i) The husband and wife wish to get a divorce;
(ii) Husband or wife of a person declared missing by the Court;
(iii) A parent or another next of kin of a spouse when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.
Note: If the wife is pregnant, giving birth, or currently breastfeeding a child under 12 months old, the husband does not have the right to request a unilateral divorce. In this case, the husband must wait until the wife has given birth and the child is over 12 months old before requesting a divorce in Court. However, if the wife files for divorce while pregnant or during the period of breastfeeding a child under 12 months old, the Court will still accept and resolve the matter.
3. Competent authority for resolution
According to the provisions of Article 35.1 and Article 39.1 of the 2015 Civil Procedure Code, the District-level People’s Court where the defendant permanently resides or works has jurisdiction to try divorce cases. In cases where the marriage has foreign elements, the Provincial People’s Court will have jurisdiction to resolve the matter.
Note: In case the person requesting a unilateral divorce cannot determine the defendant’s place of residence, they can request the Court where the defendant works to resolve the case.
Above is TNTP’s legal sharing on legal issues surrounding unilateral divorce. Hopefully through this article, TNTP can help you better understand cases of unilateral divorce cases and your rights in marital relationship.
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