When Can Courts in Vietnam Proceed with Divorce in the Absence of One Spouse?

Did you know that in Vietnam, in certain unilateral divorce cases, the court can proceed with the trial even when one party is absent from the hearing? This is a complex and sensitive topic as it involves procedures, legal rights, and strict compliance with the law for both spouses.

1. Two Types of Divorce in Vietnam – Mutual Consent and Unilateral

Mutual Consent Divorce:

• Both husband and wife agree to the divorce and reach an agreement on matters such as children, property, etc.

• The court requires both parties to be present at least once to confirm their voluntary will, attempt reconciliation, and record their agreement.

• If one party is absent, the mutual consent divorce cannot be granted.

Unilateral Divorce:

• Only one party files for divorce, while the other either disagrees or does not participate.

• In this case, if the respondent (the other spouse) is absent, the court can still proceed, provided the case complies with civil procedural regulations.

2. When Can the Court Proceed with Unilateral Divorce in Absence?

According to Article 227 of the 2015 Civil Procedure Code of Vietnam, with updates from recent legal sources:

2.1 If the Plaintiff (Party Filing for Divorce) is Absent:

• First Summons: If the plaintiff or their representative is absent, the court will adjourn the hearing, unless the plaintiff has submitted a request to proceed in their absence.

• Second Summons: If still absent without a valid reason and no request for trial in absence, the court will dismiss the case, considering it as an abandonment of the lawsuit. However, the plaintiff retains the right to refile the case later.

2.2 If the Defendant (The Other Spouse) is Absent:

• First Summons: If the defendant does not appear, the court will postpone the hearing unless they have submitted a request for a trial in absence.

• Second Summons: If the defendant continues to be absent without a legitimate reason, the court may proceed with the hearing in their absence.

  • If the defendant has filed a counterclaim and is absent without requesting a trial in absence, the counterclaim will be dismissed.

  • A legal representative appearing on their behalf is sufficient for the court to continue proceedings.

2.3 Conditions for Courts to Accept Trial in Absence:

The court will only proceed with divorce hearings in the absence of a party under the following conditions:

• The party has submitted a written request for a trial in their absence;

• A legal representative is present on their behalf;

• The absence is due to force majeure (natural disasters, illness, epidemic, etc.);

• The absence does not hinder the fairness and transparency of the proceedings.

3. The Procedure for Divorce in Absence in Vietnam

3.1 Filing and Acceptance of the Case

• Prepare a divorce dossier similar to a regular divorce: marriage certificate, certified personal documents, children's birth certificates, and proof of joint property (if any).

• File the divorce at the court where the defendant resides or has a stable living address as per Article 39 of the Civil Procedure Code.

3.2 Summoning and Trial

• The court summons the parties twice as per procedure.

  • If absent the first time, the hearing is postponed.

  • If absent the second time without a request or representative:

    • For the plaintiff: the case is dismissed.

    • For the defendant: the court proceeds if all conditions are met.

• To request a trial in absence, the plaintiff or defendant should submit the latest version of the request form.

3.3 The Hearing and Issuing the Verdict

• Even when a party is absent, the court conducts reconciliation (unless determined impossible) and gathers evidence and records.

• A representative may present arguments on behalf of the absent party.

• After reviewing all materials, the court will issue a first-instance judgment, officially ending the marriage and addressing child custody and property division (if applicable).

4. Important Notes About Absence in Divorce

• A party cannot authorize someone to represent them in divorce proceedings unless it involves close relatives (e.g., parents, children, siblings). Article 85 of the Civil Procedure Code prohibits representation in divorce without special circumstances.

• The plaintiff should carefully consider being absent, as a second absence without a valid request may lead to case dismissal. In such cases, the filing party must restart the entire process from scratch.

• If the defendant is absent without submitting a request or sending a representative, they may lose their right to counterclaims, to property settlement, or child custody arguments.

In Summary: In Vietnam, courts only proceed with divorce trials in absence in unilateral cases, when the absent party has submitted a formal request or has legal representation, and after two proper summons. Mutual consent divorces are not granted if one spouse is absent.

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