How to Determine the Applicable Law in International Marriage Disputes in Vietnam?
In today’s era of global integration, marriages between Vietnamese citizens and foreigners—or between individuals of different nationalities—are no longer uncommon. However, along with these cross-border relationships come a multitude of legal questions, especially when marital disputes arise. So in international marriage disputes, which country's law applies? This seemingly simple question is actually the key to determining the entire dispute resolution process in Vietnam.
1. Which law applies when there is a foreign element?
According to the 2014 Law on Marriage and Family, a marriage or family relationship is considered to have a foreign element in various scenarios: marriage between a Vietnamese citizen and a foreigner, divorce between a Vietnamese citizen residing abroad and a foreign national, disputes involving real estate located abroad, and more. In other words, if any element such as nationality, residence, location of property, or conduct arises overseas, it may be classified as an international marriage relationship.
In such cases, the basic principle is that Vietnamese law will be prioritized if the dispute is handled within Vietnam. However, there are exceptions. Specifically, foreign law may be applied if:
Vietnam is a member of an international treaty that provides differently from domestic law;
Vietnamese law allows for reference to foreign law, provided that it does not violate Vietnam’s fundamental principles of marriage and family (e.g., monogamy, gender equality, voluntary marriage, etc.).
That said, to apply foreign law, it must not contravene public order or core legal principles in Vietnam.
2. Divorce disputes between a Vietnamese and a foreigner – how is the law determined?
One of the most common disputes is divorce between a Vietnamese national and a foreigner. The situations can vary widely: both parties may live in Vietnam, only one resides in Vietnam, or both live abroad. Each scenario requires different legal applications:
If both parties are residing in Vietnam, the Vietnamese court has jurisdiction and will apply the Law on Marriage and Family of Vietnam.
If only the Vietnamese party resides in Vietnam, the court may still accept the case and apply Vietnamese law, unless the couple has a clearly established common residence abroad.
If both parties reside overseas, the Vietnamese court may only intervene if the dispute directly affects the rights and obligations of the Vietnamese citizen or if the Vietnamese party cannot initiate proceedings abroad for legitimate reasons.
In cases where both parties have a common residence abroad, the law of that country may apply to the divorce. However, if the foreign law permits polygamy or fails to respect gender equality, the Vietnamese court will not apply it and will instead use Vietnamese law.
3. Property division and child custody – is foreign law applicable?
When divorce involves disputes over property or child custody, determining the applicable law becomes even more complex.
For immovable property located in Vietnam, Vietnamese law unquestionably applies.
For immovable property located overseas, the applicable law will be that of the country where the property is located.
For child custody, if the child resides in Vietnam, Vietnamese law is applied. If the child lives abroad, the court may consider applying the law of that country, provided it does not conflict with Vietnam’s child protection principles.
It’s worth noting that Vietnamese law always prioritizes ensuring the best interests of the child, whether domestic or foreign law is applied.
4. What happens if there is a foreign divorce judgment?
In some cases, a Vietnamese citizen may have already divorced a foreigner in a foreign court and seeks recognition of that judgment in Vietnam. Under the Civil Procedure Code, such individuals must submit a request to have the foreign court’s judgment recognized and enforced by a competent Vietnamese court.
The Vietnamese court will examine:
Whether the foreign judgment violates any fundamental principles of Vietnamese law;
Whether the trial complied with essential procedural requirements;
Whether both parties were ensured the right to present arguments, respond, and appeal.
Only if all these conditions are satisfied will the judgment be recognized in Vietnam and carry the same legal weight as one issued by a Vietnamese court.
5. Key notes to avoid prolonged disputes
For those in or considering an international marriage, understanding and preparing legal elements in advance can help avoid future legal risks.
Some practical tips include:
Consider drafting a notarized prenuptial agreement to clarify asset rights and responsibilities, especially when assets are located in different countries.
Upon divorce, clearly determine both parties’ nationalities, residences, and applicable marriage laws to assess which law will govern the case.
If children are involved, consider the child custody laws of both countries, especially if the parents hold different nationalities.
Always maintain thorough documentation and have foreign documents legalized and translated if they are to be submitted in Vietnam.
6. Conclusion
Determining the applicable law in international marriage disputes in Vietnam is not just a matter of legal technicality but is a crucial factor in resolving disputes effectively and lawfully. In an increasingly complex legal and social landscape, stakeholders—especially Vietnamese citizens in international marriages—should be proactive in learning and preparing in advance to ensure their rights are protected.
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