Division of Assets and Child Custody in Divorce Cases Involving Foreign Elements in Vietnam

Divorce is already difficult—when foreign elements are involved, things get even more complex. So, how can property be divided fairly and who gets child custody? Below is a detailed guide — simple, easy to understand, and as helpful as talking to a trusted friend.

1. When is a divorce considered to involve foreign elements?

According to Article 127 of the 2014 Law on Marriage and Family, a divorce involves foreign elements when:

• One party is a Vietnamese citizen and the other is a foreigner, or both are foreigners but reside in Vietnam;

• If the Vietnamese citizen does not reside in Vietnam at the time of filing, the divorce will be governed by the law of the country where the couple last resided together — if no such residence exists, Vietnamese law will apply;

• Real estate located abroad will be divided in accordance with the laws of the host country.

2. Jurisdiction of Vietnamese courts in resolving disputes

The People’s Court at the provincial or municipal level has jurisdiction over divorce cases involving foreign elements. If the dispute relates to real estate, the court where the property is located will handle the case.

If either spouse is a Vietnamese resident living in a border area, the case may fall under the jurisdiction of the District-level People’s Court.

3. Property division in a divorce with foreign elements

3.1. Prenuptial agreement as an important basis

If the couple signed a property regime agreement (which must be created before marriage and notarized/certified), the court will give priority to enforcing it. If the agreement is unclear or incomplete, the provisions of the 2014 Law on Marriage and Family will apply.

3.2. When no clear agreement exists — the court will apply legal principles

According to Article 59 of the 2014 Law on Marriage and Family:

• Marital property is generally divided equally, but the court will consider additional factors such as each party’s circumstances, contributions in labor and finance, preservation of their ability to work and earn income, fault in the breakdown of the marriage, etc.

• Separate property remains with each party unless it has been merged into marital property. If so, the value of each party’s contribution will be considered proportionately.

• If possible, marital assets will be divided in-kind. If not, the court will divide by value and the party receiving more must compensate the other for the difference.

• The court will also prioritize protecting each party’s legitimate interests to ensure their ability to continue working, producing, or running a business.

3.3. Property located abroad

Real estate located in another country will be handled according to the laws of that country.

4. Child custody in divorce cases with foreign elements

4.1. Clear agreements are best

Parents may agree on who will directly raise the child and on each party’s rights and obligations. If they cannot reach an agreement, the court will decide based on legal criteria.

4.2. Criteria the court considers in the absence of an agreement

According to Article 81 of the 2014 Law on Marriage and Family:

• Parents can make an agreement, or if not, one party must prove they have sufficient conditions to raise the child — including material conditions (food, housing, education, etc.) and emotional conditions (time to care for the child, education, emotional support, moral character, etc.).

• For children under 36 months, custody is usually granted to the mother. Children aged 7 and older have the right to express their wishes.

4.3. Rights and obligations of the non-custodial parent

According to Articles 82 and 83:

• The parent not living with the child still has the right to visit and must pay child support. These rights cannot be obstructed; if visitation rights are abused, the custodial parent can request the court to restrict them.

4.4. Procedure for resolving custody disputes

The procedure is similar to a divorce case: filing the petition, determining court jurisdiction, case acceptance, mediation, investigation, and trial. The court will base its decision on the child’s best interests and the parents’ caregiving conditions.

5. Important notes

Foreign elements: When one spouse is a foreign national or there is property located overseas.

Prenuptial agreement: If applicable, it should be carefully prepared and notarized/certified.

Dividing marital assets: Typically split equally — but based on contributions, ability, and circumstances.

Foreign assets: Governed by the laws of the country where the property is located.

Child custody: Prioritize the child’s well-being. Agreements are encouraged; if not possible, the court will decide.

Hire a lawyer: International divorce cases are complex. You should seek a lawyer experienced in this field to help with documentation, valuation, proof, and protecting your rights.

Final thoughts

Are you facing a divorce with foreign elements and feeling overwhelmed? Let DEDICA Law Firm stand by your side — from preparing your documentation and gathering evidence to protecting your property and securing your child’s future. Every complication will be handled swiftly, effectively, and with empathy.

Contact DEDICA Law Firm for expert legal consultation!

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