Introduction
Consensual divorce is regarded as a progressive legal mechanism that reflects respect for the spouses’ right to self-determination, contributes to alleviating the burden on the court system, and helps to reduce conflicts within family relationships. In practice, the number of consensual divorce cases has been steadily increasing, particularly in the context of evolving social perceptions of marriage and individual rights.
However, behind the form of “consensus” — commonly understood as the mutual agreement of both spouses to terminate the marital relationship and resolve its legal consequences — there are not few cases in which asymmetries in will, information, and interests persist, giving rise to potential injustice, especially for the more vulnerable party in the marital relationship.
This article examines the legal nature of consensual divorce, juxtaposing statutory provisions with practical application, thereby addressing the central question: Is consensual divorce truly “consensual,” or is it merely a formal compromise that conceals latent injustices?
1. Legal Overview of Consensual Divorce
1.1. Concept and Legal Basis
Pursuant to Clause 14, Article 3 of the 2014 Law on Marriage and Family (LMF 2014), divorce is defined as the termination of the marital relationship by a legally effective judgment or decision of the Court. Consensual divorce is specifically regulated under Article 55 of the LMF 2014, which provides that:
“Where both spouses jointly request a divorce, if the Court finds that they genuinely and voluntarily seek divorce and have reached agreements on the division of property, and on the care, custody, nurturing, and education of their children on the basis of ensuring the legitimate interests of the wife and children, the Court shall recognize the consensual divorce; if no agreement is reached, or if the agreement fails to ensure the legitimate interests of the wife and children, the Court shall resolve the divorce.”
Accordingly, a consensual divorce may be recognized only when three cumulative conditions are satisfied:
(i) the genuine voluntariness of both parties;
(ii) an agreement on common children and joint property; and
(iii) such agreement ensures the legitimate interests of the wife and children.
1.2. Legal Nature of Consensual Divorce
In substance, consensual divorce is not merely a “simplified administrative procedure,” but rather a special form of civil agreement subject to judicial scrutiny and recognition. The Court’s decision recognizing consensual divorce takes legal effect immediately and is not subject to appeal or cassation under appellate procedures (Clause 2, Article 213 of the 2015 Civil Procedure Code – CPC 2015). This feature further amplifies the legal significance and consequences of the parties’ “consensus.”
2. The Criterion of “Consensus” from a Legal Perspective
2.1. Voluntariness – A Central but Hard-to-Verify Criterion
The law requires that “both parties genuinely and voluntarily seek divorce” (Article 55, LMF 2014). In practice, however, the determination of voluntariness largely relies on the parties’ statements before the Court, within a relatively short adjudication timeframe and with limited conditions for in-depth verification. This gives rise to the risk that voluntariness exists merely in form, while substantively being influenced by psychological, economic, or social pressures.
2.2. Agreements on Property and Common Children
The law allows spouses to freely agree on the division of joint property (Article 59, LMF 2014) and child custody arrangements (Articles 81, 82, and 83, LMF 2014). Nevertheless, unlike unilateral divorce, in consensual divorce cases courts tend to accord maximum respect to the parties’ agreements, intervening only when there are clear indications of serious infringement upon the legitimate rights and interests of the wife or children.
3. Latent Injustices in Consensual Divorce
3.1. Inequality in Status and Access to Information
In many marriages, one party — often a homemaker without stable income — occupies a weaker position in terms of economic power and legal knowledge. In consensual divorce, such a party may accept disadvantageous agreements due to the desire to quickly end the marriage or due to insufficient awareness of their lawful rights and entitlements.
3.2. “Consensus” under Psychological and Moral Pressure
In numerous cases, the so-called “consensus” is the product of pressure from family members, children, social opinion, or feelings of guilt. Current law lacks effective mechanisms to identify and exclude agreements formed under such coercive circumstances.
3.3. Risk of Injustice to Minor Children
Although Article 81 of the LMF 2014 emphasizes the principle of safeguarding the best interests of the child, in practice, many child custody agreements in consensual divorce reflect compromises between adults rather than decisions genuinely grounded in the child’s long-term welfare — particularly where child support obligations are agreed upon at minimal or merely symbolic levels.
4. The Role and Limits of the Court in Consensual Divorce
The Court acts as a “gatekeeper” in consensual divorce cases. However, under the pressure of expedited procedures and caseload efficiency, judicial review of settlement agreements is often general in nature, making it difficult to thoroughly assess latent injustices. This raises questions about the reasonable limits of the principle of respecting party autonomy in marital and family relationships, which are not purely civil in nature.
5. Recommendations for Legal and Practical Improvement
First, the Court’s role in providing explanations and legal guidance on the rights and obligations of the parties prior to recognizing consensual divorce should be strengthened, particularly with respect to property division and maintenance obligations.
Second, consideration should be given to introducing a mechanism allowing for the reconsideration of decisions recognizing consensual divorce where there is evidence that the agreement was established under coercion, deception, or involves serious violations of the rights of the weaker party.
Third, social awareness should be enhanced to emphasize that consensual divorce does not equate to “divorce for the sake of expediency,” but rather constitutes a legal decision with long-term consequences requiring careful deliberation.
Conclusion
Consensual divorce is a progressive legal institution reflecting the growing respect for individual autonomy and self-determination in marital relationships. Nevertheless, under current practical conditions, “consensus” does not always equate to fairness. Behind ostensibly voluntary agreements may lie asymmetries of power, information, and social position, resulting in long-term adverse consequences, particularly for women and children. Therefore, reassessing consensual divorce not merely as a procedural matter, but from the perspective of substantive justice and protection of vulnerable parties, is an essential requirement in the ongoing development of marriage and family law in Vietnam.
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