Division of Assets and Child Custody in Divorce with a Foreigner in Vietnam
When an international marriage in Vietnam ends in divorce, issues related to asset division and child custody are not merely legal procedures — they are matters of protecting the rights and future of the Vietnamese spouse and their children. This article provides an overview of the latest legal regulations and practical considerations when divorcing a foreign spouse in Vietnam.
1. Division of Assets in Divorce with a Foreigner in Vietnam
1.1. Definition and Principles of Division
When one spouse is a foreigner or when both reside in Vietnam but have different nationalities, the case is classified as a “marriage involving foreign elements.” The division of property in such cases is governed by the Law on Marriage and Family 2014 and related legal documents.
Accordingly:
The spouses may agree, before or during marriage, on their property regime. If a valid agreement exists, property will be divided according to that agreement upon divorce.
If no valid agreement exists, joint property will be divided under Article 59(2) of the Law on Marriage and Family 2014 — typically in equal shares but considering each party’s circumstances, contributions, and any marital misconduct.
1.2. Application in Vietnam for Cases Involving Foreign Elements
Divorces between a Vietnamese citizen and a foreigner, or between two foreigners residing in Vietnam, are handled under Article 127 of the Law on Marriage and Family 2014, which states: “Divorce between a Vietnamese citizen and a foreigner shall be settled by a competent authority of Vietnam in accordance with this Law.”
Therefore, for marriages involving foreign elements established in Vietnam, Vietnamese law applies directly. However, if the couple owns assets located abroad, or subject to foreign laws, those portions may be governed or enforced under the law of the place where the property is situated.
1.3. Key Considerations in Property Division
Identifying joint and separate property: Joint property is that created during the marriage, regardless of whose name it bears. Separate property includes assets acquired before marriage or through inheritance/gifts specifically for one spouse, unless commingled.
Agreements on property regime: Pre-nuptial or marital property agreements take precedence unless they violate the rights of third parties or dependents, in which case they may be voided.
Division by value or in kind: If property cannot be divided in kind, it will be divided by value; the spouse receiving a greater share must compensate the other.
Jurisdiction and duration: Proceedings often take longer when foreign elements exist, due to the need for verification, judicial entrustment, or involvement of overseas property. For example, uncontested divorces with foreign elements typically take 6–8 months, while contested cases can last 12 months or more.
Assets located abroad: Joint property abroad may be governed by foreign law or require international cooperation for enforcement.
2. Child Custody in Divorce with a Foreigner in Vietnam
2.1. Legal Basis and General Principles
Child custody after divorce is governed by Articles 81 and 82 of the Law on Marriage and Family 2014 and further detailed by Resolution 01/2024/NQ-HĐTP of the Supreme People’s Court (effective May 24, 2024).
Accordingly:
Both parents retain rights and obligations to care for and educate their minor children or adult children who lack capacity.
Parents may agree on custody; if they cannot reach agreement, the court will decide based on “the best interests of the child.”
Children aged 7 and above must have their opinions considered; children under 36 months are generally entrusted to the mother if she meets the necessary conditions.
2.2. Application in Cases Involving Foreign Elements
When one parent is a foreigner or holds dual nationality, custody issues become more complex due to potential cross-border relocation, differences in residence, education systems, and cultural backgrounds.
In such cases:
Vietnamese courts have jurisdiction if one parent resides or has a habitual residence in Vietnam.
Courts evaluate both parents’ material and emotional conditions, caregiving ability, stability of living environment, attachment with the child, and the child’s wishes (per Resolution 01/2024).
If the foreign parent requests custody to take the child abroad, the court will assess whether the new environment adequately safeguards the child’s best interests. If not, custody may be granted to the parent residing in Vietnam.
2.3. Important Notes
Prepare complete documentation: Petition, child’s birth certificate, marriage certificate (if any), and documents proving nationality or residence of the foreign parent.
Prove parenting capacity: Financial stability, housing, schooling, available time for care, and ability to protect the child from harm.
Child support: The non-custodial parent remains obliged to provide financial support and retains visitation rights.
Frequent absence of the foreign parent or unclear residence in Vietnam may negatively affect their custody prospects.
Child’s living and educational environment is a decisive factor in determining their best interests.
3. Practical Guidance and Strategic Preparation
3.1. Strategy for Property Division
Identify and list all joint and separate assets (both domestic and overseas) as early as possible.
Review any marital property agreements, especially in mixed-nationality marriages.
Prepare evidence of contributions, responsibilities, or misconduct during the marriage.
For overseas property, research applicable foreign laws and potential enforcement procedures.
3.2. Strategy for Child Custody
If you are a Vietnamese citizen seeking custody, demonstrate that the living environment in Vietnam offers greater stability, emotional bonds, and educational advantages, and present the child’s preferences (if applicable).
If you are a foreign parent seeking custody, provide evidence of stable residence, appropriate schooling, caregiving ability, and commitment to protecting the child’s welfare.
Always prioritize the child’s best interests — this is the key principle guiding all court decisions.
Whenever possible, reach an amicable agreement on custody and child support to save time and costs.
3.3. Legal Assistance Recommendations
Given the international nature of such cases, it is advisable to consult lawyers experienced in cross-border family law to handle issues such as recognition of foreign judgments, translation, and consular legalization.
Prepare clear documentation on property, nationality, residence, and overseas assets for better legal representation.
Always rely on the latest legal updates, such as Resolution 01/2024/NQ-HĐTP on post-divorce child custody.
4. Conclusion
Divorcing a foreign spouse in Vietnam is not merely ending a marital relationship — it is a complex legal process that requires deep understanding of both Vietnamese and international law. Proper preparation, clear evidence, and a focus on fairness and stability are essential, especially in ensuring the best interests of the child.
In today’s globalized context, divorces involving foreign elements are increasingly common in Vietnam. Differences in legal systems, language, and culture can put Vietnamese parties at a disadvantage without proper legal guidance. Therefore, proactively understanding the current legal framework and seeking assistance from experienced lawyers are vital steps to protect your legitimate rights and interests.
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