Not knowing where the husband resides can divorce?

Not knowing the current residence of the husband (defendant) is the top concern of women when getting a unilateral divorce. Because in many cases the Court has returned the Divorce Petition. However, returning the petition in many cases is illegal.

According to Article 193 of the 2015 Civil Procedure Code, when considering the Petition, the Judge has the right to notify in writing the Plaintiff to amend or supplement the Petition, including information related to the defendant's place of residence; if no amendment or supplement is made, the Judge will return the Petition.

From our practice in litigation, we see that many Judges and litigation agencies in many localities have skillfully applied the above provisions to return the Petition. However, according to Point e, Clause 1, Article 192 of the 2015 Civil Procedure Code, in the case where the wife has fully and correctly stated the address of the husband's residence in the petition but they do not have a stable residence, frequently change their residence and headquarters without notifying the new address to the competent authority or person as prescribed by law on residence, causing the wife to not know with the purpose of concealing the address and evading obligations, the Judge shall not return the petition but shall determine that the husband intentionally concealed the address and proceed to accept and resolve the case according to the general procedure.

Resolution 04/2017/NQ-HDTP dated May 5, 2017 of the Council of Judges - Supreme People's Court also provided quite detailed guidance on this issue, but the application and implementation in practice still have many issues that need to be discussed. Specifically:

According to Clause 2, Clause 3, Article 5 of Resolution 04/2017/NQ-HDTP, the address of “residence, work, or head office” or the address of “last residence, work, or head office” issued, confirmed by a competent authority or organization or has other grounds to prove that it is the husband’s address is considered to be recorded correctly.

Thus, compared to the provisions of the 2015 Civil Procedure Code, the guidance of the Council of Judges supplements the provisions in a more detailed direction. Thereby, reducing the verification pressure for the Court, avoiding the situation of accepting the case without the right authority but unintentionally increasing the responsibility of the plaintiff when having to supplement papers and documents confirming the place of residence with the Petition. Therefore, to avoid cases where the Judge returns the Petition due to not being able to determine the husband's whereabouts, women should request confirmation from the Commune, Ward or Town Police (the husband's last place of residence) and submit this confirmation to the Court for consideration of accepting the case according to the general procedure.

Another very common reality in practice is the case where the Court suspends the case after the Court fails to receive a notice of acceptance of the case because the husband no longer resides or works at the address provided by the wife.

According to the guidance at Point a, Clause 2, Article 6 of Resolution 04/2017/NQ-HDTP, in the case where the wife has fully and correctly stated the address of the husband's residence and work in the petition, but the husband changes his residence and work without notifying the address of residence and work as prescribed in Clause 3, Article 40, Point b, Clause 2, Article 277 of the 2015 Civil Code, it is considered that he intentionally concealed the address and the Court will continue to resolve the case according to the general procedure without suspending the resolution of the case for the reason of not being able to reach a general agreement.

If it is not the above case and the Court has requested the husband's new address but the wife fails to provide it, she has the right to request the Court to collect and verify the husband's new address in accordance with the provisions of law. The Court may only suspend the settlement of the case according to the provisions of Point h, Clause 1, Article 217 of the 2015 Civil Procedure Code in cases where the Court cannot determine the husband's new address.

Thus, it is still possible to get a divorce when the husband's exact address is not known. The acts of returning the Petition or suspending the settlement of the case but not based on the above legal grounds are all illegal acts. If any of you want to get a divorce but have been and are in a similar situation, please contact us at the information below for advice and support.

Major Consultants Law Firm LLC

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