Differences Between Unilateral Divorce and Consent Divorce

“Behind every great man, there is a great woman” is an old idiom said about good marriage relationship. However, when this relationship is broken, many couples even neglect to look at others. Disagreement or being unable to find a common voice in everything can lead to an increase in the divorce rate. Some, hoping to end their marriage soon, choose a unilateral divorce solution. However, the Court does not always allow unilateral divorce.

1. Differences Between Unilateral Divorce and Consent Divorce

Clause 14, Article 3 of Family and Marriage Law 2014 states that: Divorce means termination of the husband and wife relation under a Court’s legally effective judgment or decision. Divorce is usually with the mutual consent or disagreement of both spouses. 

Unilateral divorce is understood as when only one spouse wishes and voluntarily files for divorce without the consent of the other party.  In accordance with provisions of family and marriage law, upon receiving a petition for unilateral divorce, the court will conduct mediation at court.  If mediation fails, the court will proceed with divorce proceedings in accordance with the law.

2. Legal provisions on unilateral divorce

Conditions for husband or wife proceed with unilateral divorce

According to Article 56 of Family and Marriage Law 2014, husband or wife is legally allowed to file for unilateral divorce upon proving any of following issues:

• A spouse commits domestic violence, which seriously harms the life, health or spirit of the other.
• A spouse seriously infringes upon the rights and obligations of the husband or wife, which makes their common life no longer impossible and the marriage purposes unachievable, commits acts of infidelity, no affection for each other, mentally abusive behavior, etc.
• Common life is no longer impossible and the marriage purposes are unachievable, such as inequality, no affection, no respect for each other, etc.
• A spouse is declared missing by a court.

3. What are formalities for unilateral divorce?

The formalities for unilateral divorce are as follows:

Step 1:  File a petition for divorce at the competent people’s court.

Step 2:  Receive results of handling the petition.

Step 3:  Make advance payment of court’s fee for trial course at the competent civil judgment enforcement agency and submit the receipt thereof to the Court.

Step 4:  The court sends an order for testimony and mediation, and proceeds with formalities as specified in the Civil Procedure Law.

Step 5:  In case, the Court does not accept the petition for divorce, the petitioner has the right to appeal to the immediate superior court for appellate trial in accordance with the law.

4. Circumstances in which unilateral divorce is not allowed?

According to Clause 3, Article 51 and Article 56 of Family and Marriage Law 2014, unilateral divorce is not allowed under following circumstances:

• There is no ground to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife.
• There is ground to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which however does not seriously deteriorate the marriage and make their common life no longer impossible and the marriage purposes unachievable.
• A husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.
• Divorce is not settled when a spouse is missing but this is not declared by Court.

When a spouse suffers from mental illness or other sickness making him/her unable to perceive and control his/her behavior, the Court will not settle the divorce if it falls into one of the following two cases:

• The person requesting a divorce is not the father, mother or other relatives of the sick person. 
• There is no ground to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.

5. Which conditions must be met to have the right to take care of the child upon unilateral divorce?

Article 81 of Family and Marriage Law 2014 and Resolution 02/2000/NQ-HDTP on the right of looking after, care for, raising and education of children after divorce state that:

• Husband and wife shall reach agreement on the person who directly raises their children and on his and her obligations and rights toward their children after divorce. The court acknowledges this agreement by the parties and the parties are obliged to comply with the agreement
• If they fail to reach agreement, the court shall appoint either of them to directly raise the children, taking into account the children’s benefits in all aspects. 

The People’s Court uses several principles as the basis to determining the right of taking custody of the child as follows:

• A child under 36 months of age shall be directly raised by the mother, unless the mother cannot afford to directly look after, care for, raise and educate the child or otherwise agreed by the parents in the interests of the child.
• For a child aged 07 or older, before making a decision, the court must consult the child’s opinion on who he/she wishes to live with.
• Regarding the spouse’s economic conditions: Usually, the court will consider economic conditions of the parties such as income sources, main jobs to ensure that the child have a favorable development environment, where the parties live (house, rented house, borrowed house, etc.), etc.
• Regarding spiritual condition: Such as time to care for, educate and teach the children, etc., moral qualities of husband and wife, lifestyle/personality of husband and wife, time spent living with the child so far, and who provides more favorable development conditions for the child, etc.

After considering and comparing all the conditions as mentioned above, the Court will decide who is entitled to take custody of the child.