Divorce During Pregnancy: Conditions, Procedures, and the Rights of the Mother and Child
During pregnancy, if you are considering a “divorce during pregnancy” or facing a situation where “the wife is pregnant and divorce is being discussed,” it is essential to understand the conditions, procedures, and rights that protect both the mother and the unborn child. This article analyzes the legal framework under Vietnamese law, helping you clearly identify your rights, obligations, and potential risks before making an informed decision.
1. Definition, Conditions, and Rights in Divorce During Pregnancy
1.1. Basic Definition and Conditions
Under Vietnamese law, “divorce during pregnancy” or “divorce when the wife is pregnant” refers to a situation where either spouse requests to end the marriage while the wife is pregnant, has just given birth, or is nursing a child under 12 months old.
According to Article 51(3) of the 2014 Law on Marriage and Family, “The husband shall not have the right to request a divorce when his wife is pregnant, giving birth, or nursing a child under 12 months old.”
However, if the wife wishes to file for divorce during pregnancy, the law does not restrict her right to do so. This ensures that the woman can protect herself and her child when necessary.
Special conditions to note:
“Pregnant” is defined as the period confirmed by a licensed medical institution from conception until childbirth or medical termination of pregnancy.
“Giving birth” also covers cases where the wife has delivered a baby under 12 months old or terminated a pregnancy after 22 weeks.
Situations involving surrogacy for humanitarian purposes are also guided by corresponding legal provisions.
1.2. Rights and Limitations During Divorce While Pregnant
Rights of the Pregnant Wife
A pregnant wife or one nursing a child under 12 months old has the right to file for divorce—either mutual or unilateral—if she meets legal conditions.
Pregnancy does not limit her right to submit a divorce petition, allowing her to actively protect her and her child’s interests.
Limitations on the Husband’s Rights
The husband cannot request a divorce when his wife is pregnant, giving birth, or caring for a child under 12 months old.
Under Resolution 01/2024/NQ-HĐTP, this restriction applies throughout the entire period of pregnancy and for 12 months after the wife gives birth or terminates pregnancy.
This legal barrier aims to protect the rights and well-being of both the mother and the child during this sensitive stage.
Child’s Rights and Interests
Even if the baby is unborn or under 12 months old, the law prioritizes the child’s right to care, nurture, and education.
When divorce occurs during pregnancy or early infancy, the court must determine custody, alimony, and the child’s best living environment.
2. Divorce Procedure When the Wife Is Pregnant – Step-by-Step Guidance
2.1. Procedures and Documentation
Required documents:
Divorce petition (mutual or unilateral) clearly stating reasons, requests for custody, and property division.
Marriage certificate, ID/Passport of both spouses.
Medical certificate confirming pregnancy.
Child’s birth certificate (if already born).
Supporting evidence in unilateral divorce cases (e.g., domestic violence, marital misconduct).
Filing and Mediation:
For mutual divorce, both spouses file a joint petition at the local People’s Court, which will then conduct mediation.
For unilateral divorce, the pregnant wife submits the petition to the court where her husband resides. Mediation remains a required step.
If mediation succeeds, the court issues a decision recognizing the divorce; otherwise, a formal hearing will be held.
Trial and Judgment:
The court will issue a judgment or decision specifying custody, asset division, and alimony obligations. Throughout the process, the court must safeguard the rights of the pregnant woman and her child.
2.2. Legal Advice and Key Considerations
For husbands: If the wife is pregnant or caring for a child under 12 months, the husband cannot file for divorce, and the court will reject the petition.
For wives: Pregnancy is an emotionally and physically sensitive period. Carefully consider your health, the baby’s well-being, and your ability to raise the child before finalizing your decision.
Asset and child custody: Even during pregnancy, asset division and custody must follow legal standards—considering financial stability, caregiving capacity, and emotional support for the child.
Professional preparation: Ensure your documentation is complete and accurate, and consult a lawyer to protect your rights.
Timing for husbands: Husbands must wait until after the 12-month period following childbirth or termination of pregnancy before being legally eligible to file for divorce.
3. Child Custody and Protection of Mother–Child Rights After Divorce
3.1. Custody and Alimony Obligations
Under Article 81 of the 2014 Law on Marriage and Family, after divorce, both parents share the duty and right to care for, nurture, and educate their child.
If custody is granted to the mother, she must demonstrate her financial and emotional capacity—such as housing, income, time, and caregiving ability—to ensure the child’s welfare.
The parent not directly raising the child must provide alimony as determined by the court or through mutual agreement, including clear provisions on the amount, duration, and payment method.
3.2. Protecting Mother and Child During This Sensitive Period
Pregnancy and the baby’s first 12 months are highly vulnerable stages. The law intentionally restricts the husband’s right to file for divorce during this period to protect the mother and child, ensuring stability for the family when the child is unborn or newly born.
Mothers should prepare documents early—such as medical proof of pregnancy and financial evidence—to protect themselves and their children’s rights in case of legal disputes.
Even unborn children have recognized legal interests under Vietnamese law. Any decision regarding divorce during this period must prioritize the child’s best developmental environment.
Final advice: If you are pregnant and considering divorce, consult a family and matrimonial lawyer for personalized legal guidance. Professional preparation can minimize emotional strain and ensure optimal protection for both mother and child.
4. Conclusion
Divorce during pregnancy is not merely a legal process—it is an emotional and psychological journey filled with challenges for both partners, especially the mother and the unborn child. Vietnamese law has established a protective framework that allows women to leave unhappy or unsafe marriages while ensuring the physical, mental, and legal security of both mother and child.
The restriction on a husband’s right to request divorce during this period demonstrates a humanitarian and family-centered legal approach, emphasizing compassion, equality, and the best interests of the child.
Ultimately, understanding your legal rights and seeking professional legal support is the best way to safeguard yourself and your baby during this sensitive stage.
Contact DEDICA Law Firm for expert legal consultation!
📞 Hotline: (+84) 39 969 0012 (Available on WhatsApp, WeChat, and Zalo)
🏢 Head Office: 144 Vo Van Tan Street, Xuan Hoa Ward, Ho Chi Minh City (144 Vo Van Tan Street, Vo Thi Sau Ward, District 3, Ho Chi Minh City)
🕒 Business Hours: Monday – Friday (8:30 AM – 6:00 PM)
Reach out today for a free initial consultation with our team of professional lawyers!
