On May 16, 2024, the Council of Judges of the Supreme People's Court issued Resolution No. 01/2024/NQ-HDTP on instructions for applying a number of provisions of the Law on Marriage and Family issued by the Association. issued by the Council of Judges of the Supreme People's Court (“Resolution 01”). The Resolution guides a number of contents in the Law on Marriage and Family that need to be clarified based on the practice of adjudicating cases and matters of marriage and family, specifically:
1. A husband is not allowed to ask for a divorce when his wife is pregnant or has given birth
According to the provisions of the Law on Marriage and Family, the husband does not have the right to request the Court to resolve the divorce within a period of less than 12 months from the date the wife gives birth or is pregnant.
To meet the practical needs of resolving divorce cases, Resolution 01 provides additional specific instructions as follows:
a. In case the wife is pregnant or giving birth, the husband does not have the right to request a divorce regardless of who the wife is pregnant or giving birth to.
b. In case the wife is raising a child under 12 months old, the husband does not have the right to request a divorce without distinguishing between biological and adopted children.
c. In case of surrogacy for humanitarian purposes, the husband's right to request a divorce is determined as follows:
- The surrogate's husband does not have the right to ask the Court for a divorce when his wife is pregnant, has given birth or is raising a child under 12 months old;
- The husband of the surrogate mother does not have the right to ask the Court for a divorce when the wife is raising a child under 12 months old or when the surrogate mother is pregnant, giving birth or is raising a child under 12 months old.
2. The court divides the custody of children after divorce according to the principle of focusing on the rights and wishes of the children and giving priority to giving the children to the mother when the father's conditions are no better than the mother's.
According to the provisions of the Law, in case the husband and wife do not agree on who will directly raise the child, the obligations and rights of each party after divorce regarding the child, the Court will decide to assign the child to one party to directly raise based on the law. Depending on the child's rights in all aspects, if the child is 7 years old or older, the child's wishes must be considered.
Resolution 01 provides specific instructions as follows:
(i) The criteria that need to be evaluated objectively and comprehensively when considering "the child's interests in all aspects" are as follows:
- Conditions and abilities of fathers and mothers in looking after, caring for, nurturing and educating children, including the ability to protect children from abuse and exploitation;
- The child's right to live with the person directly raising them, to maintain a relationship with the parent who is not directly raising them;
- The attachment and intimacy of children with their parents;
- Parents' concern for their children;
- Ensure stability and limit disturbance to your child's living and educational environment;
- Your child's wish to stay with his or her siblings (if any) to ensure the child's psychological and emotional stability;
- The child's wish to live with one parent.
(ii) Collecting opinions from minor children aged 7 years or older must ensure the following requirements:
- Guaranteed to be friendly and suitable for children's psychology, age, and maturity level so that they can properly and fully express their opinions;
- Do not ask for opinions in front of parents to avoid putting psychological pressure on children;
- Do not force, do not put pressure or stress on your child.
(iii) The mother is not qualified to directly look after, care for, raise and educate her child and is determined to fall into one of the following cases:
- Having a serious illness or other serious illness that makes you unable to take care of yourself or unable to directly look after, care for, raise, and educate your child;
For example: In case the mother has a stroke and is paralyzed on one side and is no longer able to walk, the Court will not hand over a child under 36 months of age to the mother to directly look after, care for, raise and educate the child.
- Have a monthly income less than half the regional minimum wage where the mother resides and have no other assets to look after, care for, raise, and educate the child;
The mother does not have the minimum time conditions to directly look after, care for, raise, and educate her child.
In case the father's conditions for looking after, caring for, raising, and educating the child are not better than the mother's conditions mentioned above, the Court will decide to hand the child over to the mother to raise directly.
3. The minimum allowance is 1/2 month of the regional minimum wage
Child support is determined as the entire cost for the child's upbringing and education and is agreed upon by the parties.
In case the parties cannot agree, the Court will decide the level of support based on the income, actual ability of the person obligated to support and the essential needs of the person receiving support.
The level of support is decided by the Court but must not be lower than half of the regional minimum wage in the area where the supporter resides for each month for each child.
4. The court still accepts divorce applications and tries them in absentia when the defendant is abroad and the plaintiff does not know the defendant's address.
In the divorce case, a Vietnamese person in the country asked for a divorce from a Vietnamese person abroad and the plaintiff could only provide the address of the defendant's last residence in Vietnam but could not provide the address of the defendant. If the defendant is abroad, the Court will resolve it as follows:
a. In cases where the defendant's relatives have evidence to determine that they are in contact with relatives in the country, but their relatives do not provide the defendant's address to the Court or do not comply with the Court's request. If the court notifies the defendant, it is considered intentionally hiding the address. In case the Court requests a second time and the relative does not provide the defendant's address to the Court or does not comply with the Court's request to notify the defendant, the Court will continue to resolve the matter, tried the defendant in absentia according to general procedures.
b. After the trial, the Court sends the defendant's relatives copies of the judgment and decision for them to forward to the defendant, and at the same time publicly posts copies of the judgment and decision at the headquarters of the People's Committee. Commune-level people of the defendant's last residence and where the defendant's relatives reside so that the litigant can exercise the right to appeal according to the provisions of procedural law.
Resolution 01 takes effect from July 1, 2024.
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