Divorce means termination of the husband-wife relation under a court’s legally effective judgment or decision. According to the principles of the law on civil procedure, an individual can participate in the proceedings by himself or authorize another subject to participate in the proceedings on his behalf. However, because divorce is a very intimate matter, closely associated with the moral rights of each individual, hence the Civil Procedure Code 2015 stipulates that regarding divorce, the involved parties are not allowed to authorize other subjects to participate in the proceedings on their behalf. An exception is when one of the spouses is unable to perceive and control his/her behavior and is a victim of domestic violence, having his/her mental or physical health seriously affected, then the father, mother or other relatives of this person may request the Court to settle the divorce and represent this person to participate in the proceedings[1].
There are 02 types of divorce: divorce by mutual consent and unilateral divorce by the request of one of the spouses. In fact, the steps in both the consensual and unilateral divorce proceedings are quite similar, in both process the Court must perform two necessary steps: (i) conciliation and (ii) conduct a trial or a meeting to settle civil matters. Accordingly, at the conciliation step, if the involved parties are absent, the conciliation will be considered unsuccessful and the Court will bring the case to trial or open a meeting to resolve the civil matter.
For unilateral divorce, if both the husband and wife do not want to participate in the trial, they can file an application for trial in their absence and the Court will still conduct the trial[2]. However, in the event that the involved parties did not file an application for trial in their absence and the Court has duly summoned for the second time, if the absentee is the plaintiff, the case will be suspended, if the absentee is the defendant, the Court will conduct the trial in his or her absence[3].
For consensual divorce, the involved parties can also request the Court to settle the civil matter in their absence. However, in the event that the parties did not propose to settle the case in their absence and the Court has duly summoned for the second time but one the spouse or both spouses are still absent, the Court will issue a decision to terminate the settlement of the civil matter[4].
Therefore, according to the law, in principle, divorce cases can be settled in the absence of parties if husband, wife or both of them file applications for trial in his/her absence when they are duly summoned by the Court; or if the defendant is duly summoned by the Court for the second time but does not file an application for trial in his/her absence.
Besides, on November 26th, 2018, the Supreme People’s Court also guides the absence-trial procedure for divorce cases involving overseas Vietnamese under Official Letter No. 253/TANDTC-PC guiding settling divorce cases where one of the parties is overseas Vietnamese with unknown address (“OL 253/TANDTC-PC”).
According to OL 253/TANDTC-PC, Court still conducts the absence-trial procedure for divorce cases if:
- the plaintiff can only provide the defendant’s latest residence address in Vietnam but cannot provide the current defendant’s address in foreign country;
- if there are enough grounds to determine that the defendant still keeps in touch with his/her relatives in Vietnam (through his/her relatives) but the relatives do not provide defendant’s address, news to Court and carry out Court’s request to notify defendant in order to send testimonies to Court; and
- if Court request for the second times, defendant’s relatives still does not provide defendant’s address, news to Court and carry out Court’s request to notify defendant.
This situation is considered as a case where the defendant intentionally conceals his/her address, refuses to declare, refuses to provide necessary documents.
To read Official Letter No. 253/TANDTC-PC: DOWNLOAD
[1] Clause 4, Article 85 of the Civil Procedure Code 2015
[2] Article 238 of the Civil Procedure Code 2015
[3] Clause 2, Article 227 of the Civil Procedure Code 2015
[4] Clause 2, Article 367 of the Civil Procedure Code 2015. Because when the divorce is by mutual consent, both the husband and wife will have to sign the petition document. Hence, they are both petitioners, so both spouses are required to be present if they did not propose to settle the civil matter in their absence.