1. Relevant Legal Grounds
(a) Law on Marriage and Family 2014
- Clause 1, Article 127 provides:
“Divorce between a Vietnamese citizen and a foreigner, or between foreigners who are permanently residing in Vietnam, shall be settled by a competent Vietnamese authority in accordance with this Law.”
– Accordingly, Vietnamese courts only have jurisdiction over divorce between two foreigners if both are permanently residing in Vietnam.
(b) Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam 2023
- Clause 9, Article 3: “Residence means permanent residence or temporary residence in Vietnam by foreigners.”
- Clause 13, Article 3: “Temporary residence card is a document issued by the immigration authority or the competent agency of the Ministry of Foreign Affairs, granting foreigners lawful temporary residence in Vietnam, valid as a substitute for a visa.”
- Clause 14, Article 3: “Permanent residence card is a document issued by the immigration authority granting foreigners the right to reside in Vietnam without a time limit, valid as a substitute for a visa.”
– Thus, there is a clear distinction: temporary residence is time-limited, whereas permanent residence is unlimited. Holders of temporary residence cards do not satisfy the “permanent residence” condition required under the 2014 Law on Marriage and Family.
(c) Civil Procedure Code 2015
- Point d, Clause 1, Article 469 stipulates that Vietnamese courts have jurisdiction over:
“Divorce cases where the plaintiff or defendant is a Vietnamese citizen, or where the parties are foreigners residing, conducting business, or living long-term in Vietnam.”
– The law emphasizes the element of long-term residence. Temporary residence of less than 2 years does not meet this criterion.
2. Legal Analysis and Reasoning
- First, Article 127 of the 2014 Law on Marriage and Family clearly stipulates that Vietnamese courts have jurisdiction over divorce between two foreigners only when both are permanently residing in Vietnam. In this case, the spouses only hold temporary residence cards, so the condition is not satisfied.
- Second, the 2023 Law on Entry and Residence draws a strict distinction between temporary and permanent residence. Holding a temporary residence card does not establish a sufficiently stable legal connection with Vietnam.
- Third, the 2015 Civil Procedure Code requires the element of “long-term residence, livelihood, or business” to establish jurisdiction. Short-term residence under 2 years does not demonstrate such permanence.
– Therefore, the request for recognition of uncontested divorce by foreign spouses holding only temporary residence cards does not fall under the jurisdiction of Vietnamese courts.
3. Comments and Observations
- From a legal perspective: This rule ensures clarity, preventing Vietnamese courts from being burdened with cases lacking a strong legal nexus with Vietnam. It also helps prevent “forum shopping,” where parties may seek divorce in Vietnam merely due to faster procedures.
- From a practical perspective: In the context of increasing international integration, more foreigners are living and working in Vietnam. The rigid distinction between temporary and permanent residence may create difficulties, especially where the parties have assets, children, or other significant interests tied to Vietnam.
- Suggestions for improvement: A more flexible mechanism should be considered, allowing Vietnamese courts to accept cases where foreign spouses have lawful temporary residence and significant legal interests in Vietnam (e.g., joint property, children studying in Vietnam). This would both reflect practical needs and better protect the parties’ lawful rights and interests.
4. Conclusion
Where foreign spouses hold only temporary residence cards valid for less than 2 years in Vietnam, their joint request for recognition of uncontested divorce does not fall under the jurisdiction of Vietnamese courts.
This conclusion is based on the combined interpretation of:
- Law on Marriage and Family 2014 (Article 127),
- Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam 2023 (Article 3),
- Civil Procedure Code 2015 (Article 469).
However, in practice, this issue requires further research and legislative refinement to ensure both legal certainty and responsiveness to the realities of international integration.
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Khuong Ngoc Lan