The Council of Judges of the Supreme People's Court issued Resolution 01/2024/NQ-HDTP guiding the application of a number of legal provisions in resolving cases related to marriage and family.
Resolution 01/2024/NQ-HDTP takes effect from July 1, 2024.
Article 2 of Resolution 01/2024/NQ-HDTP stipulates the right to request divorce settlement as prescribed in Clause 3, Article 51 of the 2014 Law on Marriage and Family.
Accordingly, “being pregnant” as stipulated in Clause 3, Article 51 of the Law on Marriage and Family is the period of time when the wife is carrying the fetus and is determined by a competent medical facility until the time of giving birth or the time of terminating the pregnancy.
“Giving birth” as stipulated in Clause 3, Article 51 of the Law on Marriage and Family is in one of the following cases: The wife has given birth but does not raise the child within the period from birth to when the child is under 12 months old; The wife has given birth but the child dies within the period of less than 12 months from birth; The wife is 22 weeks pregnant or more and must terminate the pregnancy.
The husband has no right to request the Court to settle the divorce within a period of less than 12 months from the date the wife gives birth as guided in Point a, Point b, Clause 2 of this Article or the date of termination of pregnancy as guided in Point c, Clause 2 of this Article.
In case the wife is pregnant or giving birth, the husband does not have the right to request a divorce regardless of who the wife is pregnant or giving birth to.
In case the wife is raising a child under 12 months old, the husband does not have the right to request a divorce regardless of whether it is a biological child or an adopted child.
In the case of surrogacy for humanitarian purposes, the husband's right to request a divorce is determined as follows: The husband of the surrogate mother does not have the right to request the Court to resolve the divorce when his wife is pregnant, giving birth or raising a child under 12 months old; The husband of the person requesting the surrogacy does not have the right to request the Court to resolve the divorce when his wife is raising a child under 12 months old or when the surrogate mother is pregnant, giving birth or raising a child under 12 months old.
However, all of the above restrictions only apply to the husband. During the above time periods, if the wife wants to divorce her husband, she has the full right to request a divorce and the Court cannot refuse to accept the case.
Divorce by mutual consent
According to Article 3 of Resolution 01/2024/NQ-HDTP, “husband and wife jointly request divorce” as stipulated in Article 55 of the Law on Marriage and Family is the case where the husband and wife jointly sign a petition for recognition of consensual divorce, agreement on child custody, and division of property upon divorce, or one party files a divorce lawsuit, while the other party agrees to divorce, agrees on child custody, and division of property upon divorce.
The agreement between husband and wife on the division of property, the care, upbringing, care and education of children must not violate the prohibitions of the law and must not be contrary to social morality.
The agreement of the spouses on the division of property includes the case where the spouses do not request the Court to resolve the division of property.
“The care, upbringing, nurturing, and education of children” stipulated in Article 55 of the Law on Marriage and Family is the care, upbringing, nurturing, and education of minor children, adult children who have lost civil act capacity or are unable to work and have no property to support themselves.
TM
Source: https://www.nguoiduatin.vn/tu-1-7-chong-khong-co-quyen-yeu-cau-ly-hon-du-vo-co-thai-voi-ai-a668485.html
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