Divorce Involving Foreign Elements: 6 Common Mistakes and How to Handle Them
Divorce involving foreign elements often becomes complicated due to legal documentation, jurisdiction, and lengthy proceedings. This article highlights six common mistakes and the proper legal remedies to help you minimize risks and save time.
Divorce Involving Foreign Elements – Understand the Issue Clearly
A divorce is considered to involve foreign elements when one or both spouses are foreign nationals, or reside/own property abroad, or the marriage was registered overseas. According to Article 127 of the 2014 Law on Marriage and Family and Article 469 of the 2015 Civil Procedure Code, these cases fall under the jurisdiction of the provincial-level People’s Court, except in certain border-area cases where district-level courts may be competent.
6 Common Mistakes and How to Handle Them
1. Failure to Register a Foreign Marriage in Vietnam
Issue: A marriage registered abroad but not recorded at the Department of Justice in Vietnam is not legally recognized domestically.
Solution: Complete consular legalization and register the marriage before submitting the divorce application.
2. Unable to Identify the Other Party’s Residence
Issue: In unilateral divorces, not knowing the other party’s address prevents the court from serving legal documents.
Solution: Attempt to locate the address through family members or embassies. If unsuccessful, request a trial in absentia after two failed service attempts.
3. Incorrect Jurisdiction
Issue: Filing the case with a district-level court when the law requires submission to a provincial-level court.
Solution: File the case with the correct People’s Court at the provincial level, except for qualified border cases.
4. Missing Legalization and Translation of Foreign Documents
Issue: Documents such as marriage certificates, passports, or birth certificates from abroad are not legally authenticated or translated.
Solution: Must be consularly legalized, fully translated into Vietnamese, and notarized as per regulations.
5. Confusing Uncontested and Contested Divorce
Issue: Incorrect use of forms (Form 23-DS vs. Form 01-VDS) and missing required documents.
Solution:
Uncontested divorce: Use Form 01-VDS if both parties agree on divorce, asset division, and child custody.
Contested divorce: Use Form 23-DS if one party initiates the divorce due to disagreement.
6. Not Requesting to Waive Mediation in Absentia Cases
Issue: The party residing abroad is unable or unwilling to attend mediation, but no waiver is submitted, delaying the case.
Solution: File a request to waive mediation at the time of filing the case to allow the court to proceed in absentia.
Summary of the Divorce Process
Prepare documentation:
Divorce petition (contested/uncontested)
Personal ID documents
Marriage certificate
Children’s birth certificates
Property documentation
Foreign documents must be legalized and translated.
Submit documents:
Contested divorce: to the provincial People’s Court where the defendant resides.
Uncontested divorce: to the court in the province of either spouse’s residence.
Court processing & fee payment:
Review within 7–8 days, then request for court fee deposit.
Mediation or trial:
Mediation may be waived for absent parties.
Contested cases usually take longer.
Judgment/decision issuance:
Becomes effective immediately in uncontested cases, or after 15 days without appeal.
Expected timeframes:
Uncontested: 3–4 months
Contested: 4–6 months, up to 12 months if the other party is absent.
Court Fees and Additional Expenses
Official court fees:
No property dispute: VND 300,000
Uncontested cases (shortened process): VND 150,000
With property disputes: fees calculated based on property value (under Resolution 326/2016).
Additional costs may include:
Consular legalization, translations, interpreters
Legal representation, judicial entrustment
Asset valuation, etc. These can range from several million to tens of millions of VND depending on the complexity of the case.
Contact DEDICA Law Firm today for expert legal advice!
Phone: (+84) 39 969 0012 (We are available on WhatsApp, WeChat and Zalo)
Head Office: 144 Vo Van Tan Street, Vo Thi Sau Ward, District 3, Ho Chi Minh City, Vietnam
Hours: Monday–Friday (8:30 am – 6:00 pm)
Call us now or leave us a message to get advice. Initial consultation is free of charge.
