DIVORCE PROCEDURE WHEN ONE PARTY IS MISSING, HAS LEFT, OR CANNOT BE CONTACTED IN VIETNAM

In marriage, the situation where one spouse is missing, has left, or cannot be contacted is relatively common and gives rise to numerous difficulties in family life as well as related legal matters. The remaining spouse often faces challenges in exercising joint rights and obligations, such as child care, asset management, and in conducting divorce proceedings.

Vietnamese law recognizes the right to unilaterally request a divorce in such cases in order to protect legitimate interests, allowing the remaining spouse to lawfully terminate the marital relationship and avoid prolonged uncertainty that may cause psychological and financial harm.

I. Legal Basis

The divorce procedure when one party is missing, has left, or cannot be contacted is based on the following legal provisions:

• Vietnam’s Civil Code 2015: Articles 49 and 50 provide for disappearance and presumed disappearance, allowing the Court to declare a person missing if there is no news for a prolonged period (at least 2 years) and presumed missing if there is no news for 5 years or more.
• Civil Procedure Code 2015: Provisions on the acceptance and resolution of civil cases, particularly regarding in absentia proceedings.
• Law on Marriage and Family 2014: Provisions on the right to request divorce, grounds for divorce, and the rights and obligations of the parties upon divorce.
• Relevant guiding legal documents.

These provisions provide a clear legal basis for handling divorce procedures when the respondent is missing or cannot be contacted, ensuring the protection of the petitioner’s lawful rights.

II. Cases of disappearance or leaving without contact

In practice, the situation of one party being missing or having left can be divided into two main categories:

• The absent party still has a known residence or temporary address: In this case, the other party may be able to ascertain the current place of residence or temporary residence of the missing person, even if they do not live together or maintain contact. The petitioner may file a unilateral divorce petition with the People’s Court of the district, town, or urban district where the other party resides or temporarily resides, in accordance with ordinary procedures. However, in practice, this process may encounter difficulties in summoning the party and serving documents.
• The absent party has an unknown residence and has been missing for an extended period: This is a more common and complex situation, in which the remaining spouse has no information whatsoever regarding the missing person’s whereabouts or condition, and there has been no communication for an extended period of time. In such circumstances, the remaining spouse must request the Court to issue a declaration of the other party as missing, or presumed missing, before initiating unilateral divorce proceedings.

Clearly distinguishing between these two situations helps determine the proper procedure, avoid unnecessary time and expense, and ensure the protection of the parties’ rights and interests.

III. Procedure for declaring a person missing

When the absent spouse falls under the case of having an unknown residence and being missing for a prolonged period, the remaining spouse must initiate proceedings to obtain a declaration of missing status, thereby establishing the legal basis for subsequent procedures, particularly divorce.

Main Steps:

• Prepare documents: Including a petition for a declaration of missing status or presumed missing status; the petitioner’s identification documents; and evidence demonstrating efforts to locate and verify the missing person (verification records, relevant documents, public search notices, etc.).
• Submit application: At the People’s Court of the district or province where the missing person last resided.
• Acceptance and examination: The Court shall review the case file, may summon witnesses, and conduct on-site verification.
• Declaration of missing person: If sufficient grounds are established, the Court shall issue a decision declaring the person missing (after 2 years) or presumed missing (after 5 years).
• Significance of the decision: This serves as an essential legal basis for the remaining spouse to initiate unilateral divorce proceedings and other related legal procedures.

IV. Divorce procedure when one party is missing, has left, or cannot be contacted

After obtaining the Court’s decision declaring the person missing, or if the missing person still has a clearly identifiable residence, the remaining spouse may proceed with unilateral divorce proceedings in accordance with the following steps:

Step 1: Prepare the petition for unilateral divorce

• The divorce petition must clearly state the grounds for divorce and the absence of the other party, accompanied by the Court’s decision declaring the person missing (if applicable).
• It must also provide information regarding children and property, specifying requests concerning child custody and the division of assets.

Step 2: Submit the petition to the Court

• Submit the petition to the People’s Court of the district where the missing person last resided or where the petitioner currently resides.
• If the temporary or permanent residence of the missing person is known, the petition should be filed with the Court of that location to facilitate case acceptance.

Step 3: The Court accepts the case for consideration

• The Court shall review and accept the petition, and issue summonses and notifications to the missing person at their last known address.
• In cases where contact cannot be established or the missing person fails to appear, the Court will proceed with the trial in their absence.

Step 4: Trial and issuance of the divorce decree

• The Court shall adjudicate the divorce case based on the case file, evidence, and applicable legal provisions.
• An official divorce judgment shall be issued, thereby terminating the marital relationship.

V.  Some important notes

The petitioner must prepare and collect sufficient evidence proving that one party is missing, has abandoned the marital residence, or cannot be contacted, in order to increase the likelihood of a successful resolution. The handling of the case may be prolonged as the Court is required to conduct verification and fact-finding. Seeking legal advice or assistance from a lawyer in drafting the petition and representing the petitioner before the Court will facilitate smoother proceedings. At the same time, it is advisable to address disputes relating to property and child custody either prior to or concurrently with the divorce procedure, so as to avoid unnecessary delays and complications. The petitioner should also regularly update and monitor the progress of the case before the Court.

VI. Conclusion

Divorce proceedings in cases where one spouse is missing, has abandoned the marital residence, or cannot be contacted constitute a necessary legal remedy, enabling the remaining spouse to lawfully terminate the marriage and avoid a prolonged state of uncertainty that adversely affects personal life and legal rights.

Vietnamese law provides detailed regulations, establishing a clear legal framework to ensure that this procedure is carried out transparently and fairly. Individuals seeking divorce under such circumstances should carefully prepare their documentation, strictly comply with procedural requirements, and seek assistance from a lawyer to ensure their rights and interests are best protected.

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