Divorce procedure in case of absent involved parties in Vietnam
Many people think that divorce must be settled by the Court when there are both involved parties. However, according to the Civil Procedure Code 2015, if either party is absent in divorce, it will still be accepted by the Court. The proceeding will be settled in accordance with the procedure specified in Article 227 of the Civil Procedure Code 2015.
- The Court convenes for the first time duly, the litigants or their representatives, protectors of the legitimate rights and interests of the involved parties must be present at the trial; if any person is absent, the trial panel must postpone the trial, unless that person has a written request for trial.
The Court must notify the litigants, their representatives, defence counsels of their legitimate rights and interests about the postponement of the trial.
- The Court summons fully for the second time, the litigants or their representatives, the protectors of the legitimate rights and interests of the litigants must be present at the trial, unless they have a petition for trial absence; If the litigant is absent due to a force majeure event or objective obstacle, the Court may adjourn the trial; if it is not due to a force majeure event or objective obstacle, it shall be handled as follows:
a. If the plaintiff is absent without a representative attending the Court, it shall be regarded as abandoning the lawsuit and the Court shall issue a decision to suspend the resolution of the case against the person’s request for lawsuit, except for cases where the person has a written request for a trial. The plaintiff has the right to sue in accordance with law;
b. If the defendant does not have a counter-claim, the person with related rights and obligations does not have an independent request and is absent without a representative to participate in the trial, the Court shall conduct the trial in their absence;
c. If the defendant has requested a counterclaim and is absent without a representative to participate in the Court, the defendant shall be deemed to waive the counterclaim and the Court decides to suspend the handling of the counterclaim, unless the defendant has an application for a default hearing. The defendant has the right to initiate a lawsuit against that counterclaim as prescribed by law;
d. Persons with related rights and obligations who have independent claims and are absent without representatives attending the Court shall be considered abandoning their independent claims and the Court shall decide to suspend the resolution of such requests. If the person has an application for a trial, he or she is independent. Persons with related interests and obligations who have independent claims have the right to initiate lawsuits against such independent claims according to the provisions of law; and
e. If the defence counsels of legitimate rights and interests of the involved parties are absent, the Court shall proceed with the trial in their absence.
This means that if either the plaintiff or the defendant is absent, the Court will apply divorce procedure regarding case of absent involved parties and depending on whether the plaintiff or the defendant, their rights and obligations in the trial will vary. During the divorce procedure, the plaintiff will be considered withdrawing the petition in the second absence, the defendant will lose the rights he/she would have had if attending the trial. Therefore, except for force majeure reasons, the defendant should not be absent during the divorce proceeding.
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