Marriage and family relations in Vietnam are protected by the law. Therefore, once a divorce is settled by the Court, the concerned parties such as spouses must participate in the Court proceedings. However, in practice, there are the cases where one spouse deliberately avoids participating in the Court proceedings because they do not want the divorce to be settled timely. This has been the issue of concern of many people. How does the Settlement of a divorce in absence happen?
In a divorce case, the absentee mentioned in this article could be the plaintiff, the defendant, a concerned person.
Read more: Divorce procedure in case of absent involved parties in Vietnam
Divorce procedure in case of absent involved parties in Vietnam
In the phase of compulsory conciliation
Except for the cases in which the compulsory conciliation is not allowed under Article 206 of the 2015 Civil Proceedings Code, before the case is brought to trial, the Court is responsible for conducting conciliation for the spouse to get the mutal consent on the divorce to comply with the civil procedure law according to Article 54 of the 2014 Law on Marriage and Family. The settlement of a divorce in absence is required for marriage and family disputes or related petitions.
Thus, the settlement of a divorce in absence from the conciliation stage is conduct in accordance with Articles 208, 209 and 210 of the 2015 Civil Proceedings Code. Accordingly, in case the Defendant, the person with related interests and obligations has been duly summoned by the Court for the second time but intentionally is absent without a plausible reason, the Court will issue a a confirmation of conciliation is unable to be carried out in written according to Article 207.1 of the 2015 Civil Proceedings Code. In case the plaintiff is absent more than twice even though the court is properly summoned which is considered to seriously affect the case, pursuant to Article 217 of the 2015 Civil Proceedings Code, the Court may issue a the decision to suspend the cases
However, there are still cases where the absence is considered by the Court to be valid under Articles 207.2, 209 of the 2015 Civil Proceedings Code, at this time, the conciliation can still continue. After the settlement of a divorce in absence at the conciliation stage, In a case with several concerned parties where one of them is absent, but the concerned parties which are present still agree to carry out the meeting and such meeting does not affect the rights and obligations of the absent party, the judge will notify the results of the meeting to the absent party according to regulation 209.3 of the 2015 Civil Proceedings Code. In the case of the settlement of a divorce in absence but the parties have made an agreement, based on Article 212.3 of the 2015 Civil Proceedings Code, such agreement is valid only for those present and decided by the Judge. recognition if it does not affect the rights and obligations of the absent parties. In the case the agreement affects the rights and obligations of the absent concerned party, such agreement shall only be valid and shall be acknowledged under a decision issued by the judge if the agreement is agreed in writing by the party absent at the conciliation meeting.
In the phase of hearing
Upon being properly summoned by the Court for the first time, the litigant, his or her representative and a person protecting his or her lawful rights and interests must be presented at the trial; if there is an absence, the Council of Adjudicators must adjourn the trial unless such person has made an application to petition the Court to conduct the hearing in his or her absence. The Court shall notify the litigants, their representatives and persons protecting their lawful rights and interests of the adjournment of the trial.
The settlement of a divorce in absence for the second summons is provided at Article 227.2 of the Code of Civil Proceedings 2015. The litigant, his or her representative and a person protecting his or her lawful rights and interests must be presented at the trial, unless they have sent the court a written request for settlement in absence. If the litigant, his or her representative and a person protecting his or her lawful rights and interests is absent due to an event of force majeure or an objective obstacle; the court may adjourn the trial, otherwise the court will settle the case in absence in compliance with the following rules.
- Settlement of a divorce in absence of the plaintiff without his/her representative: the plaintiff shall be deemed to have abandoned the legal proceeding and the Court shall issue a decision on suspension of the case initiated by him/her, unless he or she has a written request for settlement in absence. The plaintiff shall have the right to initiate the legal proceeding again in accordance with law;
- Settlement of a divorce in absence of the defendant who does not make a counterclaim or of a concerned person who does not make an independent claim without his/her representative: the Court shall conduct the hearing in his or her absence;
- Settlement of a divorce in absence of the defendant without his/her representative: the defendant is deemed to have abandoned the counterclaim, and the Court shall suspend the counterclaim, unless such defendant has a written request for settlement of his/her counterclaim in absence. The defendant shall have the right to initiate the legal proceeding again with respect to such counterclaim in accordance with the law;
- Settlement of a divorce in absence of the concerned person who makes an independent claim without his/her representative: the concerned person is deemed to have abandoned the independent claim and the Court shall suspend the independent claim, unless such person has a written request for settlement of his/her independent claim in absence. The concerned person who makes an independent claim shall have the right to initiate the legal proceeding again with respect to such independent claim in accordance with the
- Settlement of a divorce in absence of the person protecting the lawful rights and interests of litigants: the Court still conducts the trial in his or her absence.
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If you are having difficulty finding a lawyer to advise you on settlement of a divorce in absence, please feel free to contact us. Phuoc & Partners is a professional consulting firm established in Vietnam and currently has nearly 100 members working in three offices in Ho Chi Minh City, Hanoi and Danang. Phuoc & Partners is also rated as one of the leading consulting firms specializing in business law in Vietnam that has leading practice areas in the legal market such as Labour and Employment, Taxation, Merger and acquisition, Litigation. We are confident in providing customers with optimal and effective civil litigation service.
