LEGAL ISSUES WHEN DIVORCE BY MUTUAL CONSENT
When life is no longer happy and the purpose of marriage cannot be achieved, divorce is the last solution for the couple. In case the husband and wife both request a divorce and have reached an agreement regarding assets, common debts and children, they have the right to request the Court to recognize mutual consent divorce. In this article, TNTP will analyze legal issues when divorce by mutual consent.
1. Grounds and conditions for divorce by mutual consent
Article 55 of the 2014 Law on Marriage and Family stipulates as follows: “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.”
In order for the Court to recognize a mutual consent divorce, the following conditions must be met:
– Both parties agree to voluntarily divorce, which means agreeing to terminate the marital relationship;
– The two parties have reached an agreement on the division of assets and settlement of common debts;
– The two parties have reached an agreement regarding the care, upbringing, nurturing and education of the child on the basis of ensuring the legitimate rights and interests of the wife and children are safeguarded.
If the Court finds that the husband and wife meet all of the above conditions, the Court will recognize a mutual consent divorce.
Thus, when husband and wife realize that their marital relationship is no longer happy and they cannot continue living together, they both voluntarily divorce and have reached an agreement regarding property as well as care and support to raise, care for, and educate their children together, husband and wife have the right to request the Court to recognize a mutual consent divorce.
2. Jurisdiction to adjudicate mutual consent divorce requests and Court fees for mutual consent divorce
a. Jurisdiction to adjudicate mutual consent divorce requests
According to the provisions of Clause 2, Article 29 of the 2015 Civil Procedure Code, the request to recognize a mutual consent divorce falls under the jurisdiction of the People’s Court.
Point h, Clause 2, Article 39 of the 2015 Civil Procedure Code stipulates as follows: “The Court of the area where one of the parties to a voluntary divorce, agreed child custody or property division resides or works shall have the jurisdiction to resolve the petition for recognition of the voluntary divorces and the agreement on child custody and property division upon divorces”.
Thus, People’s Courts of districts where the spouse resides will have the authority to resolve requests for mutual consent divorce.
Note: For divorce requests in which either the husband or wife is a foreigner, the jurisdiction to resolve divorce belongs to the Provincial People’s Court according to the provisions of Clause 1, Article 38 of the 2015 Civil Procedure Code.
b. Court fees for mutual consent divorce
Mutual consent divorce is a civil matter, with no property disputes. According to Resolution No. 326/2016/UBTVQH14, the court fee for uncontested divorce at the first-instance trial in the case of a mutual consent divorce is VND 300,000 except for cases where the fee for a mutual consent divorce is exempted or reduced according to the provisions of law.
3. Time to process a request for a mutual consent divorce
Procedures for resolving a mutual consent divorce are applied in accordance with the procedures for resolving civil matters according to the 2015 Civil Procedure Code.
Within 03 working days from the date of receipt of the request to recognize a mutual consent divorce, the Chief Justice of the Court assigns a Judge to resolve the request.
When determining that the request is eligible to be accepted, the Judge will notify the requester of the payment of the fee to request civil matter resolution within 05 working days from the date of receipt of the notice of payment of the fee.
According to the provisions of Clause 1, Article 366 of the 2015 Civil Procedure Code, the time limit for trial preparation is 01 month from the date the Court accepts the request unless otherwise prescribed by law.
Therefore, the overall duration for the Court to adjudicate a mutual consent divorce request, from the moment it is accepted until the decision to recognize a mutual consent divorce, can range from 02 to 03 months, depending on the circumstances. However, in practice, unforeseen events or other objective factors may arise, potentially extending the time required to resolve a divorce request.
Above is TNTP’s legal sharing on legal issues when divorce by mutual consent. Hope this article is useful to you.
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