Does Absence from Court Affect Divorce Proceedings in Vietnam?
During divorce proceedings in Vietnam, a common question is whether being absent from court can delay or negatively impact one’s legal rights or the outcome of the divorce. Let’s explore this topic in detail with Dedica Law, based on the Law on Marriage and Family 2014, the Civil Procedure Code 2015, and the latest legal updates.
1. How does court absence affect mutual consent divorce?
a) Mediation stage:
According to Article 397 of the Civil Procedure Code 2015, mediation is mandatory in cases of mutual consent divorce. If one party has a legitimate reason for being absent, the court will record it and continue with the proceedings rather than immediately suspending the case.
However, if one party is absent at the first mediation session and does not submit a request for trial in absentia, the court may postpone the session once to allow participation.
b) Trial stage:
If one party continues to be absent after two duly served summonses, the court may deem this as abandonment of the agreement and suspend the mutual consent divorce proceedings. In this case, the divorce will not be legally recognized.
2. Is absence accepted in unilateral divorce cases?
a) Conditions for unilateral divorce:
As stipulated in Article 56 of the Law on Marriage and Family 2014, unilateral divorce is granted when mediation fails and there is a valid reason such as domestic violence or serious violations of spousal obligations.
b) Absence of the petitioner (initiator):
If the petitioner submits a request for trial in absentia, the court may proceed with the trial without their presence.
If the petitioner is absent for both summonses without submitting a request for trial in absentia, the court considers it a withdrawal of the petition and will dismiss the case.
c) Absence of the respondent (other party):
If the respondent is absent from the first session, the court will reschedule once to give them a chance to attend.
If the respondent continues to be absent without submitting a request for trial in absentia or providing a valid reason, the court may proceed to try the case in their absence.
Conclusion:
A unilateral divorce may still proceed even if the petitioner or respondent is absent during trial—provided there’s a request for trial in absentia or the absence occurs after two duly served summonses.
Conversely, if the petitioner is absent twice without a request for trial in absentia, the case will be dismissed.
3. What happens if both parties are absent?
In special cases where both parties are absent without submitting a request for trial in absentia, Article 227(2) of the Civil Procedure Code applies:
If the court has duly summoned both parties twice and there are no valid reasons for absence—or a request for trial in absentia was submitted—the court may still proceed with the trial in their absence.
However, if both parties are absent from the very first session without submitting a request for trial in absentia, the court will typically postpone the trial to ensure the right to participate is upheld.
This provision is particularly relevant when both spouses cannot attend court, for instance, due to living abroad or intentionally avoiding court.
4. Procedure and Timeline for Trials in Absentia
Required documents:
Marriage certificate, children's birth certificates (if applicable), ID cards/passports of both spouses, household registration book, and documents proving shared assets (if any).
A written request for trial in absentia (if court attendance is not possible), which serves as the legal basis for the court to proceed without the party.
Basic process:
Submit the case file to the competent court (where the respondent resides or works).
Court handling and mediation: The court will summon the parties for mediation; if one party is absent, the session may be postponed or proceed in absentia if the reason is valid.
Trial: The court continues to summon the parties. If a party is absent for the second time without a valid reason:
Mutual consent divorce ⇒ Case is dismissed.
Unilateral divorce ⇒ Proceed to trial in the absence of one or both parties (if legally allowed).
Verdict: After the trial, the court will issue the divorce judgment. The absent party (if they did not request a trial in absentia) still has the right to appeal within 15 days of receiving the judgment.
Timeline:
Preparation time for trial: usually 4 months, with a possible 2-month extension for complex cases.
Trial sessions are typically held within 1–2 months after acceptance of the case.
5. Practical Considerations in Divorce Trials with Absentee Parties
Public notice: If a party’s address is unknown, service by public notice is applied as per Article 179 of the Civil Procedure Code 2015.
No substitution: One cannot authorize another person to appear on their behalf in a divorce case—this is a personal right that is non-transferable.
Evasion tactics: If one party deliberately avoids court appearances, the court can proceed with the trial in their absence, even for both parties, once the two-summon rule is met.
Mutual consent divorce may be dismissed due to one party’s absence, while unilateral divorce can still proceed if the initiating party has submitted a request for trial in absentia.
Conclusion and Advice from DEDICA Law
Mutual consent divorce: Both parties must attend at least until mediation fails and the second summons is issued. Absence at the second session often results in dismissal.
Unilateral divorce: If a request for trial in absentia is submitted and summoning procedures are met, the court may try the case in the absence of one or both parties.
Both parties absent: The court may still proceed with the trial if both were duly summoned twice without valid excuses.
DEDICA’s recommendation: Whether you are filing for mutual consent or unilateral divorce, it is critical to:
Prepare a complete case file,
Submit a written request for trial in absentia if needed,
Attend at least one of the initial court sessions if possible.
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