Nowadays, the issues surrounding each individual of life have become increasingly diverse and complex. Specifically, the occurrence of divorce is becoming more frequent, with married couples experiencing conflicts and being unable to continue their marital life. In some cases, either the husband or wife leaves for many years without returning, leaving the other person lonely and isolated. They are caught in a dilemma, wondering whether their spouse will ever return, how long they should wait, or if they should start a new life with someone else. Will the law accept such a decision? Faced with this challenging question, Apolo Lawyers will clarify the matter for readers through this article. However, if you wish to receive more specific legal advice, please call the Hotline: (+84) 903 419 479 for the best advice and support.
While marriage marks the beginning of establishing a spousal relationship, divorce is the end that terminates this relationship. When marital life can no longer be sustained, and the affection between the couple has faded, divorce becomes the solution that both parties look towards to give each other a new life. The law specifically stipulates the grounds for divorce, which serve as the basis for the competent court to resolve divorce cases. Specifically, Article 55 of the 2014 Law on Marriage and Family states:
“In cases where both husband and wife request a divorce, if it is found that both parties truly voluntarily agree to the divorce and have agreed on the division of property, the care, custody, nurturing, and education of the child on the basis of ensuring the legitimate rights and interests of the wife and child, the court shall recognize the consent for divorce. If the agreement cannot be reached or if the agreement does not ensure the legitimate rights and interests of the wife and child, the court shall resolve the divorce.”
This applies when both spouses wish to divorce, serving as the basis for the court to determine that both parties want to terminate their marriage.
Additionally, the law allows one spouse to request a unilateral divorce if there are grounds to determine that the other spouse has committed acts of domestic violence, seriously violated the obligations of a husband or wife, causing the marriage to fall into a severe state, making shared life impossible, and failing to achieve the purpose of marriage. So, does the abandonment of one spouse constitute grounds for the other to request the court to resolve a unilateral divorce?
According to Clause 2, Article 56 of the 2014 Law on Marriage and Family:
“2. In cases where a spouse of a person who has been declared missing by the court requests a divorce, the court shall resolve the divorce.”
Thus, one party may request a divorce when the other has abandoned their place of residence and has been declared missing by the court. Moreover, if the person who was declared missing returns, the marital relationship between the two is not automatically restored.
Can a husband or wife who has abandoned their residence marry someone else?
What should be noted when one spouse requests the court to declare a divorce with the spouse who has gone missing?
According to Point c, Clause 3, Article 192 of the Civil Procedure Code, regarding the return of the petition and the right to refile the lawsuit, it is stipulated as follows:
“In cases not falling under points a and b, Clause 2 of this Article, if the court has requested the plaintiff to provide a new address of the defendant, persons with related rights and obligations, but the plaintiff cannot provide it, they have the right to request the court to collect and verify the new address of the defendant, persons with related rights and obligations as prescribed by law. If the court cannot determine the new address of the defendant, persons with related rights and obligations, the court shall suspend the resolution of the case according to the provisions of point h, Clause 1, Article 217 of the 2015 Civil Procedure Code, except as guided in Clause 3 of this Article.”
If the court accepts the divorce case and the defendant had already left before the case was accepted, this situation will fall within the scope of the above-mentioned point c. At this time, the court will request the plaintiff to provide the new address of the defendant. If the plaintiff cannot provide a new address, they have the right to request the court to collect and verify the new address of the defendant according to legal provisions. If the court cannot determine the new address of the defendant, the case will be suspended according to the provisions of point h, Clause 1, Article 217 of the 2015 Civil Procedure Code, except in cases related to disputes over inheritance of property; situations specified in points b, c, Clause 5, and point c, Clause 6, Article 477 of the 2015 Civil Procedure Code, and other cases as prescribed by law. Other cases are generally regulated by law, with no specific provisions related to handling situations where the defendant had left before the Marriage and Family case was accepted.
Can a husband or wife who has abandoned their residence marry someone else?
When one spouse has left, and the other does not know the new place of residence but wishes to divorce, they need the court to declare the other spouse missing. Specifically:
The plaintiff submits a request to the competent court to declare a person missing. Within 20 days from the date of acceptance of the petition, the court will issue a decision to announce the search for the person requested to be declared missing. This notice will be implemented according to legal provisions, with the search notice period being 4 months from the date of publication of the notice.
According to Clause 1, Article 68 of the 2015 Civil Code, a person may be declared missing if they have been absent continuously for 2 years or more, and even after all necessary measures have been taken to announce and search for them as prescribed by the law on civil procedures, there is still no verified information about whether that person is alive or dead. In this case, upon the request of persons with related rights and interests, the court may declare the person missing.
After the court has issued a decision declaring a person missing, the plaintiff may file a petition to request a divorce according to the provisions of Clause 2, Article 56 of the Law on Marriage and Family.
Thus, the 2014 Law on Marriage and Family has made progressive and specific provisions to ensure the right to divorce for every citizen. Proper application of the law not only thoroughly addresses the root of the issue but also ensures the rights and interests of individuals and related parties in the event of any issues.
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