Divorce Procedures Involving Foreign Elements in Vietnam

How Divorce Procedures Involving Foreign Elements in Vietnam Are Regulated?

The procedure for divorce in Vietnam involving foreign elements is one of the complicated procedures. Therefore, when implementing this procedures, the parties need to pay attention to the related legal provisions to avoid problems when conducting the divorce procedure in Vietnam or involve family lawyers for assistance in preparing documents and filing petition, especially if there are potential dispute in custody or common assets, properties division.

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Divorce involving foreign elements means termination of the husband and wife relation under a court’s legally effective judgment or decision, in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad, according to the interpretation on “divorce” and “Marriage and family relation involving foreign elements” of Law on Marriage and family 2014.

The parties when implementing this procedure need to ensure that s/he has the right to request a divorce as prescribed in Article 51 of the Law on Marriage and family 2014. Specifically, the subject of the divorce procedure must be the wife or the husband, or the legal guardian of s/he in the case s/he lost the civil act capacity. The husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

The divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency.  In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.

The Court in Vietnam has the jurisdiction to settle the divorce request. More specifically, the People’s Court of province have the jurisdiction to settle the case in which involve parties or properties in foreign countries or which must be judicially entrusted to representative agencies of the Socialist Republic of Vietnam overseas or to foreign courts.

The Court will settle the case according to the procedure on code of civil in Vietnam. The time to settle the case will be based on the details of the case. The time limit for trial preparation is from 04 to 06 months from the date the Court accepts the case. The time to set up the court is from 01 to 02 months from the date on which the decision to bring the case to trial is issued. The marriage relationship will terminate from the date the Court has the valid divorce decision.

Besides, the dossier on divorce involving foreign elements including the documents related to marriage relationship, the identification and the documents related to the property, children according to the regulations on Law on Marriage and family 2014 and Code of Civil procedure 2015. In detail, the dossier includes the petition for divorce, the copy of Identification or other personal documents (Passport, Identification card); the copy of Household book, the original of Marriage certificate, in case the parties lost the original of Marriage certificate, the parties could provide the copy of Marriage certificate with the confirmation of competent authority and need to show this information in the petition for divorce, the copy of the birth certificate of the child/children (if having the common child/children); the copies of the documents on the ownership of the property (if increasing the dispute).

In addition, when submitting the dossier on requiring to settle the divorce case: (i) if the parties got married in Vietnam, then the spouse exits abroad (and s/he could not find the address of the spouse), s/he needs to have the confirmation of the competent authority that the spouse existed; (ii) if the parties got married under foreign law wish to divorce in Vietnam, they need to implement the procedure on legalization the Marriage certificate, other related documents, and note in the register book of Department of Justice, then submit the divorce petition. In the case the parties did not implement the procedure on note in the register book but they still wish to divorce in Vietnam, they need to show the reason why they did not make the marriage note.

The person whom submit the divorce petition will submit the dossier to the People’s Court of Province where one of the parties are residing in Vietnam. The Court will check the dossier, if valid, the Court will issue the notification on paying the court fee. After the court fee is paid, the Court will accept the divorce case and issue the notification on acceptance the case to Procuracy, and defendant (the involved parties). Many Courts in Vietnam require the parties to implement the reconciliation step.

It is suggested to involve divorce dispute lawyers in Vietnam if the case of divorce would turns out to be complicated when there are disputes on custody and assets or property division.

 

 

 

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What is Salary Payment Rules According to Labor Code 2019?

The employer shall pay the employee on the basis of the agreed salary, productivity and work quality. The salary written in the employment contract and the salary paid shall be made in Vietnam dong. If the employee is a foreigner working in Vietnam, the salary payment to foreigners can be made in foreign currency. The payment of salary to the employee by the employer has to follow salary payment rules clearly regulated under the labour to protect the interest of the employee and avoid disputes in employment relationship.

 

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Employers shall directly, fully and punctually pay salaries to their employees. In the cases where an employee is not able to directly receive his/her salary, the employer may pay it through a person legally authorized by the employee. Employers must not restrict or interfere their employees’ spending of their salaries; must not force their employees to spend their salaries on goods or services of the employers or any particular providers decided by the employers.

Every time salary is paid, the employer shall provide the employee with a note specifying the salary, overtime pay, nightshift pay and deductions (if any).

An employee who receives an hourly, daily or weekly salary shall be paid after every working hour, day or week respectively, or shall receive a sum within not more than 15 days as agreed by both parties; an employee who receives a monthly or bi-weekly salary shall be paid after every month or every two weeks respectively, the payment time shall be periodic and agreed upon by both parties; an employee who receives a piece rate or a fixed amount shall be paid as agreed by both parties. In case a task cannot be completed within one month, the employee shall receive a monthly advance payment based on the amount of work done in the month.

In case of a force majeure event in which the employer is unable to pay the employee on schedule after all remedial measures have been implemented, the salary shall be paid within 30 days. In case a salary is paid at least 15 days behind schedule, the employer shall pay the employee a compensation that is worth at least the interest on the amount paid behind schedule at the latest 1-month interest rate quoted by the bank at which the employee’s salary account is opened.

Failing to make payment or making underpayment of wages and salaries to employees is the breach of labor contracts which fines imposed on the employers will be at the following rates: a fine ranging from VND 5,000,000 to VND 10,000,000 to be imposed if the violation involves 01 – 10 employees; a fine ranging from VND 10,000,000 to VND 20,000,000 to be imposed if the violation involves 11 – 50 employees; a fine ranging from VND 20,000,000 to VND 30,000,000 to be imposed if the violation involves 51 – 100 employees; a fine ranging from VND 30,000,000 to VND 40,000,000 to be imposed if the violation involves 101 – 300 employees; a fine ranging from VND 40,000,000 to VND 50,000,000 to be imposed if the violation involves 301 or more employees. At the same time, the employers shall be compelled the full repayment of wage and salary plus the amount of late payment interest calculated at the highest demand deposit interest rates publicly quoted by state-owned commercial banks on the date of imposition of such penalty for the violations.

According to the provisions of the Labor Code 2019, the employer must pay the employee directly, fully and on time. If due to force majeure, the employer has used all the remedial measures but cannot pay the salary on time, there is only maximum extension of 01 month for late payment. Passing this time limit, the employee has the right to unilaterally terminate the labor contract without prior notice or make complaints or filing lawsuits at competent agencies to resolve employment dispute. The time limit to request a labor mediator to settle an individual labor dispute is 06 months; the time limit to bring an individual labor dispute to the Court is 01 year from the date on which a party discovers the act of infringement of their lawful rights and interests. Employment dispute lawyers in Vietnam specializing in dispute could be engaged to protect best interest of parties involved and provide guidance to resolve in most effective ways.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur.  It is also suggested to consult with labour lawyers of Employment dispute law firm in Vietnam speacializing in employment matters for efficiency. 

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