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Separation and divorce are undesirable in a marriage relationship. However, when both husband and wife no longer have a common voice and common purpose in marriage, the issue of separation and divorce should be considered.
General provisions of the law on separation
Separation is understood as husband and wife living together or living separately but not having a conjugal relationship (sexual relationship) but still maintaining a legal marriage relationship.
Currently, Vietnamese law does not have specific provisions on separation for a number of reasons such as the Court cannot intervene in the husband and wife relationship when they do not intend to divorce. If couples feel that their marriage is deadlocked, they decide to take each other to court to give each other time to think, so they can quickly come to a divorce decision.
Therefore, Vietnamese law rejected the provisions on separation during the formulation of the Law on Marriage and Family in 2014.
How is the separation procedure performed?
Since Vietnamese law does not have specific provisions on separation, separation procedures do not exist. Usually, to show separation, couples who do not live together but still keep their marital relationship above the law.
What are the similarities and differences between separation and divorce?
- Divorce and separation both show that both husband and wife are no longer living together , have no common economy and no common spiritual life.
- Separation does not require any formalities and the marriage relationship has not ended.
- Divorce requires many legal procedures to end the marriage relationship . Legal proceedings may include procedures for property division, child custody, etc.
Divide property during separation
In principle, separation does not legally end the marital relationship. Therefore, the property of the couple during this period is still considered the common property of the couple. The issue of property division only arises when there is a request for divorce from an individual or both spouses.
Dividing assets during the death period
How long does it take to get divorced?
Usually, the suitable divorce time is from 1-2 months . However, you only need to prove that your marriage is in a serious and irreversible condition due to the failure to achieve the marriage purpose, the competent authority will carry out the divorce proceedings.
Some legal questions on separation and divorce
Is joint debt considered legal when husband and wife divorce?
Debts established by the couple during the marriage to meet common purposes for the essential needs of the couple will be considered joint debts and the husband and wife are obliged to pay together when dissolving. decided to divorce.
Answers to questions about divorce proceedings?
There is always grassroots mediation before divorce , but not necessarily mediation by the ward or commune People’s Committee. It can be mediation from the family, mediation conducted by the neighborhood group or by the women’s union or youth union . Required documents for divorce proceedings.
>> See details: How is the divorce procedure? Detailed step-by-step instructions
Child custody rights after divorce?
According to article 81, the Law on Marriage and Family 2014 stipulates:
After a divorce, parents still have the right and obligation to look after, care for, raise and educate their minor children , adult children who have lost their civil act capacity or are unable to work and are unable to work. property to support themselves in accordance with this Law, the Civil Code and other relevant laws.
Husband and wife agree on the person directly raising the child , obligations and rights of each party after the divorce towards the child; in case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.
Children under 36 months of age shall be assigned to their mothers to directly raise them, unless the mothers are not eligible to directly look after, care for, raise and educate the children or the parents have other agreements in accordance with the interests of the children. child.
Solve legal problems arising in divorce?
When getting a divorce, the legal issues that arise are:
Joint property of husband and wife: Both spouses can completely agree on the issue of division of marital property. If no agreement is reached, they have the right to ask the court to divide the property. In principle, when dividing the common property of husband and wife, the separate property of either party remains under the ownership of that party. The marital property will be divided equally, taking into account a number of factors:
+ Circumstances of the family and of the husband and wife.
+ The contribution of each party to the creation, maintenance and development of the common property.
+ Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income.
+ The fault of each party in violating the rights and obligations of husband and wife.
Regarding common children: Divorce only terminates the relationship between husband and wife, not the father, mother and child relationship. The rights and obligations between parents and children still exist as prescribed in Article 81 of the Law on Marriage and Family 2014.
After a divorce, parents still have the right and obligation to look after, care for, raise and educate their minor children and adult children who have lost their civil act capacity or are unable to work and are unable to work. property to support themselves.
+ Husband and wife agree on who directly raises children, obligations and rights of each party after divorce towards children; in case no agreement can be reached, the Court shall decide to assign the child to one party to directly raise it based on the child’s interests in all aspects; if the child is full 07 years old or older, the child’s wishes must be considered.
+ When the couple cannot reach an agreement, the Court will settle the principle that children under 36 years of age are assigned to their mothers for direct care, unless the mother is not eligible to directly look after, care for and nurture. the child’s education or the parents have other agreements in accordance with the child’s interests.
The person who does not directly raise the child must support the child, the level of support shall be agreed upon by the two parties. If no agreement is reached, the court shall decide and the person who does not directly raise the child shall have the right to visit the child.
The court does not consider a child over 18 years old unless the child over 18 is mentally or physically unable to support himself.
Joint debt: An individual or institutional debt that is borrowed by husband and wife, or only by husband and wife, but for common use, or for the common life of the family.
+ For this common debt, on the principle of divorce, the two parties have the right to reach an agreement to settle it. Husband and wife have joint responsibility as prescribed in Article 27 of the Law on Marriage and Family 2014.
Is the allowance received by the wife during the marriage the joint property of the husband and wife?
Separate property of husband and wife is specified in Article 43 of the Law on Marriage and Family 2014 as follows:
Separate property of husband and wife includes property that each person has before marriage ; separately inherited property, given separately during the marriage; property divided among husband and wife according to the provisions of Articles 38, 39 and 40 of this Law; property serving the essential needs of the husband and wife and other property which, as prescribed by law, belongs to the husband and wife separately.
The property formed from the separate property of the husband and wife is also the separate property of the husband and wife. Yields and profits arising from separate property during the marriage period shall comply with the provisions of Clause 1, Article 33 and Clause 1, Article 40 of this Law.
Specific guidance on other separate properties of husband and wife, Article 11 of Decree No. 126/2014/ND-CP dated December 31, 2014 of the Government stipulates:
- Property rights to intellectual property objects in accordance with the law on intellectual property.
- Property that husband and wife establish separate ownership according to a judgment or decision of a court or other competent agency.
- The allowances and incentives received by the spouses according to the provisions of the law on incentives for people with meritorious services to the revolution; other property rights attached to the personal identity of husband and wife.
That is, property acquired by a husband or wife under a decision of a competent authority; The allowances and incentives received by the husband and wife according to the provisions of the law on incentives for people with meritorious services to the revolution are the private property of the husband and wife.
Is the allowance received by the wife during the marriage the joint property of the husband and wife?
Conditions to change directly raising children after divorce?
In order to directly change the child custodian after a divorce, the following grounds are required:
- Parents have an agreement on changing the person directly raising the child in accordance with the interests of the child.
- The person directly raising the child is no longer eligible to directly look after, care for, raise and educate the child.
- The change of person directly raising children must consider the wishes of children aged full 07 years or older.
Can an adulterer husband ask for a unilateral divorce?
If the husband or wife has an affair, the other party has the right to unilaterally request a divorce under the provisions of the Law on Marriage and Family 2014.
>> See details: Unilateral divorce procedures and the latest regulations in 2021
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