Divorce Procedure in Vietnam When One Party is Abroad

Divorce involving foreign elements is one of the most complex areas in matrimonial and family litigation in Vietnam. The rise in cases where one party resides abroad has created numerous legal challenges: questions of jurisdiction, procedural rules, service of process, determination of rights and obligations, enforcement of judgments on property division and child custody, and practical enforcement difficulties in an international context.

This article analyzes the legal aspects of these cases when one party is absent from Vietnam, based on two published judgments: 38/2025/HNGĐ-ST and 85/2025/QĐST-HNGĐ. It clarifies the typical litigation process, the rights and obligations of the parties, and highlights the practical obstacles in adjudication and enforcement.

1. Overview of divorce involving foreign elements and legal basis
1.1. Concept and scope
Under Article 127 of the Law on Marriage and Family 2014, divorce involving foreign elements is the termination of a marital relationship where at least one party is a foreigner, a Vietnamese residing abroad, or a foreigner permanently residing in Vietnam. Typical cases include divorce between a Vietnamese citizen and a foreigner, divorce between two Vietnamese citizens where one party resides abroad, or disputes over property with foreign elements.

In current judicial practice, divorce cases involving foreign elements have increased rapidly due to migration, labor export, and cross-border marriages. Disputes concerning jurisdiction, procedural rules, conditions for divorce, and particularly the issue of one party’s absence have become central topics in both academic debates and judicial practice.

1.2. Legal basis
Law on Marriage and Family 2014: Provides fundamental regulations on the right to request divorce, conditions for divorce, settlement of property, children, and alimony, with specific provisions on divorce involving foreign elements.
Civil Procedure Code 2015 (amended and supplemented in 2025): Regulates jurisdiction, procedural steps, service of process, judicial entrustment, trial in absentia, enforcement of judgments, and recognition of foreign judgments.
Law on Mutual Legal Assistance 2007 and relevant international treaties: Govern service of process, evidence collection, recognition, and enforcement of judgments involving foreign elements.
Resolutions and official letters of the Council of Judges of the Supreme People’s Court: e.g., Resolution 01/2024/NQ-HĐTP on procedural rules, Official Letter 253/TANDTC on handling divorce cases where the defendant is abroad with an unknown address.
These legal instruments must be applied based on the principle of protecting personal rights and ensuring fair and transparent proceedings, while flexibly adapting to diverse international realities.

2. Practical settlement of divorce in absentia through judgments
To gain a concrete perspective, we analyze each judgment, identify similarities and differences, and generalize a model for divorce cases where one party resides abroad.

2.1. Case summary
Judgment No. 38/2025/HNGĐ-ST:

Plaintiff: Mrs. Trần Thị B petitioned the Court to resolve her divorce from Mr. Nguyễn Văn A (defendant).
Defendant: Mr. Nguyễn Văn A, residing in the United States, did not return to Vietnam to participate in proceedings.
Proceedings: The Court served procedural documents through international judicial entrustment to the United States (under Article 474 of the Civil Procedure Code 2015) but received no response from foreign authorities within the statutory time limit. Under Article 238 of the Civil Procedure Code 2015, the Court proceeded to trial in absentia.
Dispute: The plaintiff requested divorce on the grounds of an unhappy marital life and lack of care. The parties had one child; the plaintiff requested custody but no alimony. The parties made no claims or failed to provide evidence regarding property, so the Court did not adjudicate property issues.
Result: The Court granted the divorce, awarded custody to the plaintiff, recognized the defendant’s visitation rights, and the plaintiff bore first-instance court fees.
Judgment No. 85/2025/QĐST-HNGĐ:

Plaintiff: Mr. Lê Văn D, residing in Germany, authorized a representative in Vietnam to conduct procedural steps.
Defendant: Mrs. Phạm Thị F, residing in Vietnam, was duly summoned but failed to attend the second hearing.
Proceedings: The Court tried the case in absentia of the defendant, as she was absent after the second lawful summons under the Civil Procedure Code 2015. Procedural steps were conducted through the plaintiff’s authorized representative in Vietnam.
Dispute: The marital relationship had broken down, and the parties had lived separately for many years. Neither party requested settlement of issues relating to children, property, or financial obligations.
Result: The Court granted the divorce with no additional rulings on children, property, or alimony. The plaintiff bore first-instance court fees.

2.2. Notable similarities
Both judgments reflect common characteristics of divorce disputes where one party is absent from Vietnam:

Procedural mechanism: Judicial entrustment abroad (when the defendant resides overseas) or representation by proxy (when the plaintiff resides abroad). If no response is received within the statutory time limit, the Court may proceed to trial in absentia, even without the party’s cooperation.
Case resolution: If the parties have no disputes over property, children, or alimony, the Court does not adjudicate, ensuring the principle of resolving only upon the parties’ requests.
Rights and obligations of the absent party: The absent defendant retains the right to visitation and the right to counterclaim if procedural rules are followed.
Difficulties in enforcement: If the adjudged party has no assets, cannot be located, or conceals their whereabouts, enforcement in Vietnam may be practically impossible.

3. Jurisdiction in divorce cases involving foreign elements
3.1. Jurisdiction to accept cases
Under the Law on Marriage and Family 2014 and the Civil Procedure Code 2015, first-instance jurisdiction over divorce cases involving foreign elements lies with the People’s Court of the district where the defendant (or the plaintiff in certain special cases) resides or works in Vietnam. Correct determination of jurisdiction is crucial to avoid rejection of petitions and delays in case resolution.

When the defendant’s residence in Vietnam cannot be determined, the plaintiff may request the Court of their own residence to accept the case if additional conditions are satisfied, or proceed with judicial entrustment and verification through diplomatic channels.

3.2. Particulars of jurisdiction in specific cases
Consensual divorce: Jurisdiction lies with the Court where either party resides or works.
Unilateral divorce: Jurisdiction usually lies with the Court where the defendant resides. If the defendant is not in Vietnam, the plaintiff may file at their own residence or where assets remain in Vietnam.
Proper determination of jurisdiction minimizes procedural disputes, creates a foundation for effective adjudication, and protects the rights of parties in a multinational context.

4. Litigation procedure when one party is absent
4.1. Required documents and evidence
The petitioner must submit a complete dossier as prescribed:

Petition for settlement of civil matters regarding divorce.
Original marriage certificate (or duly certified copy).
Identity card/citizen ID/passport (of both parties, with consular legalization if foreign documents).
Birth certificate(s) of common child(ren), documents verifying residence, property documents (if there is a dispute).
Documents proving the address of the party abroad or confirmation of departure.
Request for trial in absentia.
Documents from abroad must be translated into Vietnamese, notarized, and consularly legalized according to international regulations, possibly through the Embassy or Consulate of Vietnam in the host country.

4.2. Typical procedural steps
Step 1: Filing and acceptance of the dossier

Submission directly to the competent Court, by post, through an authorized representative in Vietnam, or via legal service.
The Court examines validity and issues a notice of advance payment of court fees.
Step 2: Acceptance, service of process, judicial entrustment

The Court issues a notice of acceptance and serves procedural documents to the party abroad through international judicial entrustment, or by public posting at the last known residence (if no address is available).
Service and judicial entrustment take time as documents must be transmitted via the Ministry of Foreign Affairs and embassies, depending on the procedures of the foreign country. This commonly takes 6–18 months.
Step 3: Preparation for trial

Mediation is mandatory (except where impossible or excessively delayed). If one party is absent or deliberately avoids participation, the Court records unsuccessful mediation.
Once all service measures have been carried out and the other party remains absent for the second time, the Court issues a decision to bring the case to trial in absentia.
Step 4: Trial hearing

The Court bases its decision on the case file, examines evidence, statements, and the parties’ cooperation.
The Trial Panel records the reasons, the process of judicial entrustment, service of process, and verification in detail.
When lawful authorization exists, the Court conducts procedures through the representative.
The judgment addresses: termination of the marital relationship; decisions on child custody, alimony, property division (if requested); recognition of visitation rights of the absent party; and notes on enforcement.
Step 5: Judgment, decision, and post-trial procedures

The judgment or decision recognizing divorce takes legal effect after the appeal period expires.
Procedures for recording the divorce in the civil status register in Vietnam (if the marriage was registered abroad).
Enforcement (if assets exist in Vietnam or the other party returns to Vietnam) or recognition of the judgment in the foreign jurisdiction (for cases involving foreign assets or obligations such as alimony or child custody).

4.3. Regulations on trial in absentia and key features
The Civil Procedure Code 2015 provides detailed rules on trial in absentia:

If the defendant is duly summoned the first time but absent, the Court postpones the hearing.
If absent at the second summons, the Court proceeds to trial in absentia.
If the plaintiff is absent the second time without requesting trial in absentia, the Court dismisses the case.
Parties may submit a request for trial in absentia if unable to attend due to objective reasons.

5. Rights and obligations of the absent party in divorce
5.1. Procedural rights
To be informed of and provide opinions on the divorce petition (if service is successful).
To file counterclaims, present arguments, and submit evidence if cooperating through judicial entrustment or a lawful representative in Vietnam.
When repeatedly absent without justifiable reason, the party loses the right to mediation, to rebut the other party’s arguments, and to debate issues of property division, child custody, and related obligations.

5.2. Obligations
To comply with the Court’s judgment or decision (which becomes legally effective after the appeal or protest period).
To fulfill obligations regarding alimony, child custody, and settlement of property obligations if requested or ordered.

5.3. Particulars of representation
Regarding personal rights (such as the request for divorce), the law does not allow a party to authorize another person to participate in proceedings on their behalf, except in special cases (guardianship, incapacity, victims of serious domestic violence).
For other requests such as receiving or transmitting documents, supplementing materials, filing dossiers, or paying court fees, authorization to a person in Vietnam is permitted.

6. Division of property and obligations of custody and alimony
6.1. Principles for handling property with foreign elements
Common property in Vietnam is resolved under Vietnamese law, with priority given to the parties’ agreement. If no agreement is reached, the Court bases its decision on family circumstances, contributions, fault, and protection of the disadvantaged party. Property is divided in a reasonable proportion, not necessarily equally, taking into account contributions and actual circumstances.

Property abroad is only resolved when there is sufficient evidence, particularly regarding land, real estate, or bank accounts. Vietnamese courts may only resolve property within Vietnam. For property abroad, procedures must be undertaken to request recognition and enforcement in the foreign jurisdiction under international treaties or the principle of reciprocity.

Separate property must be supported by clear evidence. If not proven, the property is deemed common property.

6.2. Child custody and alimony
Custody is determined based on the best interests of the child. If the child is under 36 months old, custody is usually awarded to the mother. For children aged 7 or older, their opinion must be considered. If one parent resides abroad, geographical distance often results in the parent remaining in Vietnam being prioritized, as this is more favorable for the child’s care, upbringing, and education.

Alimony obligations: The non-custodial parent must provide alimony according to agreement or court decision, even if residing abroad. However, enforcement of cross-border alimony obligations depends on judicial cooperation treaties between countries or requires recognition of the judgment in the foreign jurisdiction.

6.3. Practical difficulties in property division and enforcement of obligations
Verification, seizure, valuation, and expert appraisal of property abroad are very difficult or nearly impossible if the absent party does not provide information, address, or cooperation.

Judgments of Vietnamese courts regarding property or child custody abroad generally have no direct enforceability overseas and require recognition under the law of the country where the property or child is located.

Judgments on property division or alimony obligations often serve only as deterrents if the obligated party resides in or moves to countries without judicial cooperation agreements with Vietnam.

Conclusion
Divorce cases where one party resides abroad are inherently complex, reflecting both the particularities of Vietnam’s family law and the strong influence of international legal regulations. Through analysis of two representative judgments, we see that although the legal system has made significant progress—adding provisions on case acceptance, trial in absentia, and judicial entrustment—many practical challenges remain. Proceedings are often prolonged, verification of identity, address, and assets of parties abroad is difficult, and enforcement mechanisms and protection of substantive rights remain limited.

In the context of international integration, Vietnamese law increasingly aligns with international practice, particularly in ensuring the right to request divorce, protecting the best interests of children, resolving common property, and addressing cross-border alimony obligations. However, for judgments and decisions on divorce involving foreign elements to be truly effective, continued improvement of the law, expansion of international cooperation, and enhancement of enforcement mechanisms are necessary. Only then can the rights and obligations of Vietnamese citizens in the context of globalization be fully and fairly guaranteed.

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