Chương IV Luật Hôn nhân và gia đình 2014: Chấm dứt hôn nhân

Chapter IV

TERMINATION OF MARRIAGE

Section 1. DIVORCE

Article 51. The right to request settlement of divorce

1. Husband or wife or both has or have the right to request a court to settle their divorce.

2. A parent or another next of kin of a spouse has the right to request a court to settle a divorce when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit.

3. A husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

Article 52. Encouragement of grassroots-level conciliation

The State and society shall encourage grassroots-level conciliation when a husband or wife requests a divorce. The conciliation must comply with the law on grassroots-level conciliation.

Article 53. Acceptance of divorce petitions

1. A court shall accept divorce petitions in accordance with the civil procedure law.

2. For a couple who has not registered their marriage but requests a divorce, the court shall accept the case and declare non-recognition of their spousal relationship under Clause 1, Article 14 of this Law; and shall settle any children- or property-related requests according to Articles 15 and 16 of this Law.

Article 54. Conciliation at court

After accepting a divorce petition, a court shall conduct conciliation in accordance with the civil procedure law.

Article 55. Divorce by mutual consent

When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children. If the spouses fail to reach agreement or have reached an agreement which -fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.

Article 56. Divorce at the request of one spouse

1. When a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable.

2. When the spouse of a person who is declared missing by a court requests a divorce, the court shall permit the divorce.

3. For request for a divorce under Clause 2, Article 51 of this Law, a court shall permit the divorce if it has grounds to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.

Article 57. Time of termination of marriage and responsibility to send divorce judgments or decisions

1. The marriage relation shall terminate on the date a court’s divorce judgment or decision takes legally effective.

2. The court that has settled a divorce shall send the legally effective divorce judgment or decision to the agency registering such marriage for recording in the civil status register; the divorced partners; and other persons, agencies and organizations as prescribed by the Civil Procedure Code and other relevant laws.

Article 58. Rights and obligations of parents and children after divorce

The looking after, care for, raising and education of children after divorce must comply with Articles 81, 82, 83 and 84 of this Law.

Article 59. Principles of settlement of property of husband and wife upon divorce

1. The settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.

In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. In case the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.

2. Common property shall be divided into two, taking into account the following factors:

a/ Circumstances of the family, husband and wife;

b/ Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;

c/ Protecting the legitimate interests of each spouse in their production, business and career activities to create conditions for them to continue working to generate incomes;

d/ Each spouse’s faults in the infringement of spousal rights and obligations.

3. Common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner who receives the property in kind with a value bigger than the portion he/she is entitled to receive shall pay the value difference to the other.

4. Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property in accordance with this Law.

A spouse who requests division of separate property which has been merged into or mixed with common property shall be paid for the value of his/her property contributed to common property, unless otherwise agreed by husband and wife.

5. The lawful rights and interests of the wife, minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves shall be protected.

6. The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding this Article.

Article 60. Settlement of property rights and obligations of husband and wife toward a third party upon divorce

1. Property rights and obligations of husband and wife toward a third party remain effective after divorce, unless otherwise agreed by husband and wife and that party.

2. When a dispute arises over property rights and obligations, the settlement of such dispute must comply with Articles 27, 37 and 45 of this Law and the Civil Code.

Article 61. Division of property for a couple living with their family

1. When a couple living with their family get a divorce, if their property cannot be determined separately from the common property of the family, the husband or wife is entitled to division of part of the family’s common property based on the couple’s contributions to the creation, maintenance and development of the family’s common property as well as to the common life of the family. The couple shall reach agreement with their family on their portion divided from the family’s common property. If they fail to reach agreement thereon, they may request settlement by a court.

2. For a couple living with their family whose property can be determined separately from the family’s common property, upon divorce, such property portion of the couple shall be deducted from the family’s common property for division under Article 59 of this Law.

Article 62. Division of land use rights of husband and wife upon divorce

1. Land use rights being separate property of a spouse remain under his/her ownership upon divorce.

2. The division of land use rights being common property of husband and wife upon divorce shall be divided as follows:

a/ For agricultural land under annual crops or aquaculture, if both partners have the need and conditions to directly use the land, the land use rights shall be divided under their agreement. If they fail to reach agreement thereon, they may request a court to settle it according to Article 59 of this Law.

When only one partner has the need and conditions to directly use the land, that partner may continue to use the land but shall pay to the other the portion of the land use right value the latter is entitled to;

b/ When husband and wife share the right to use agricultural land under annual crops or aquaculture with their household, upon divorce, the couple’s portion of the land use right shall be separated and divided under Point a of this Clause;

c/ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use rights shall be divided according to Article 59 of this Law;

d/ The division of the rights to use land of other categories must comply with the land law.

3. For husband and wife living with their family and sharing no land use rights with the latter, upon divorce, the interests of the partner who has no land use rights and does not continue to live with the family shall be settled according to Article 61 of this Law.

Article 63. The right to stay of a spouse upon divorce

A house which is separate property of a spouse and has been put to common use remains under his/her ownership upon divorce. In case the other partner has accommodation difficulties, unless otherwise agreed by the partners, he/she has the right to stay at the house for 6 months at most from the date of termination of the marriage relation.

Article 64. Division of common property used for business activities

A spouse who is carrying out business activities related to common property has the right to receive that property and shall pay the other the property value that the latter is entitled to, unless otherwise prescribed by the business law.

Section 2. MARRIAGE TERMINATED AS A SPOUSE IS DEAD OR DECLARED TO BE DEAD BY COURT

Article 65. Time of termination of marriage

A marriage is terminated from the time of death of a spouse.

In case a court declares a spouse to be dead, the time of termination of the marriage is the date of death stated in the court’s judgment or decision.

Article 66. Settlement of property of husband and wife in case a spouse is dead or declared to be dead by a court

1. When a spouse is dead or declared to be dead by a court, the other shall manage common property, unless another person is designated to manage the estate under his/her testament or the heirs agree to designate another person to manage the estate.

2. When there is a request for division of the estate, unless the couple has reached agreement on the property regime, common property of husband and wife shall be divided into two. The property portion of the spouse who is dead or declared to be dead by a court shall be divided in accordance with the inheritance law.

3. In case the division of the estate would seriously affect the life of the living spouse and the family, this spouse has the right to request a court to restrict the division of the estate in accordance with the Civil Code.

4. Unless otherwise prescribed by the business law, property of husband and wife used for business activities shall be settled according to Clauses 1, 2 and 3 of this Article.

Article 67. Personal and property relations upon return of a spouse who is declared to be dead

1. When a court issues a decision to cancel the declaration of death of a person and that person’s spouse has not got married to another person, their marriage relation shall be restored from the time of their marriage. In case there is a court’s decision permitting a divorce under Clause 2, Article 56 of this Law, this decision remains legally valid. In case the spouse of that person has got married to another person, the marriage relation established later is legally effective.

2. The property relation between the person declared to be dead who returns and his spouse shall be settled as follows:

a/ If their marriage is restored, the property relation shall be restored on the effective date of the court’s decision canceling the declaration of death of the person who is the husband or wife. The property acquired by his/her spouse from the effective date of the court’s decision declaring death of the husband or wife to the effective date of the court’s decision canceling such declaration is separate property of that spouse;

b / If their marriage is not restored, property created before the effective date of the court’s decision declaring death of the husband or wife which has not been divided shall be settled as for property division upon divorce.