Việt kiều ly hôn vợ/chồng tại Việt Nam: Thẩm quyền, thủ tục và 3 tình huống thường gặp (Luật sư Lê Bình Phương phân tích)Overseas Vietnamese Divorcing a Spouse in Vietnam: Jurisdiction, Procedure, and 3 Common Scenarios (Analysis by Lawyer Lê Bình Phương)

Reference translation for convenience. The Vietnamese version is the authoritative text.

Overview

A situation I encounter fairly often: a man who has settled in the US for 15 years, has built a new life, and wants to divorce his wife who is still in Vietnam. Or the reverse — a woman in Vietnam discovers her husband has started a new family abroad and wants to officially divorce in order to resolve their common property.

The first legal question: which court has jurisdiction? In Vietnam or in the country of residence?

The next question: how will property in Vietnam (real estate, bank accounts) be divided?

And the final — but weighty — question: who will have custody of any children?

Vietnamese law provides a clear framework for each question. But the practical process depends heavily on the specific situation — particularly where each party resides and where the assets are located.

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🌐 For overseas Vietnamese readers — English summary

Overseas Vietnamese Divorcing a Spouse in Vietnam: Jurisdiction, Procedure & Asset Division

Quick answer: Vietnamese courts have jurisdiction when one party resides in Vietnam or when properties are located in Vietnam. The applicable law depends on the situation, under Article 127 of the Marriage and Family Law 2014.

Key points:

• Three common scenarios analyzed: one party in Vietnam, both parties abroad with Vietnam-based assets, and divorce already obtained abroad needing recognition in Vietnam.

• Since July 1, 2025, the District People’s Court (TAND khu vực) has first-instance jurisdiction over cross-border divorce cases (BLTTDS amended 2025).

• Vietnamese real estate is governed by Vietnamese law regardless of where divorce is filed (Article 127(3)).

• A foreign divorce judgment requires recognition by a Vietnamese court before it can affect Vietnamese assets, civil registry, or remarriage in Vietnam.

• Child custody across borders requires a concrete relocation plan — Vietnamese courts give weight to feasibility.

Legal basis: Marriage and Family Law 2014 (Articles 81, 127); Civil Procedure Code amended 2025.

Contact: Master – Lawyer Le Binh Phuong | Phone/Zalo: +84 966 45 45 45 | Ho Chi Minh City, Vietnam | Remote consultation available for clients abroad. Can represent the entire divorce proceeding in Vietnam under consularized power of attorney.

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Relevant Legal Provisions

Jurisdiction — Law on Marriage and Family 2014

Article 127 of the Law on Marriage and Family 2014 (Law No. 52/2014/QH13):

“1. Divorce between a Vietnamese citizen and a foreigner, or between foreigners who are habitually resident in Vietnam, shall be resolved by the competent authority of Vietnam in accordance with this Law.

2. Where a Vietnamese citizen who is not habitually resident in Vietnam at the time of the divorce petition requests divorce, the matter shall be resolved under the law of the country of the couple’s common habitual residence; if they have no common habitual residence, it shall be resolved under Vietnamese law.

3. The division of property that is real estate located abroad upon divorce shall be governed by the law of the country where the real estate is located.”

Article 127 is the core legal framework for cross-border divorce. Its three clauses address three different situations — they are not to be conflated.

Court Jurisdiction Under the Civil Procedure Code Amended 2025

Under the Civil Procedure Code amended 2025 (effective 1 July 2025): the regional People’s Court (TAND khu vực) has first-instance jurisdiction to resolve all disputes and petitions relating to marriage and family involving parties or assets abroad, or requiring judicial assistance to be entrusted to a Vietnamese diplomatic mission abroad, or to a foreign court or competent authority.

This is an important change from the Civil Procedure Code 2015 — previously such cases fell under provincial-level People’s Courts (TAND cấp tỉnh); now the regional People’s Court handles first-instance proceedings. Appeals are handled by the provincial-level People’s Court.

Grounds for Divorce — Law on Marriage and Family 2014

Articles 51, 55, and 56 of the Law on Marriage and Family 2014: an overseas Vietnamese person may seek divorce on the general grounds — mutual consent divorce (both parties agree) or unilateral divorce petition (one party does not agree).

For a unilateral divorce petition (Article 56), the grounds to be proven are: “a spouse commits domestic violence or seriously breaches the rights and obligations of spouses, causing the marriage to fall into a serious situation where cohabitation can no longer continue and the purpose of marriage cannot be achieved.”

Child Custody After Divorce — Law on Marriage and Family 2014

Article 81(1) and (2) of the Law on Marriage and Family 2014: after divorce, both spouses retain rights and obligations to supervise, care for, raise, and educate the children. They may agree on who directly raises the children. If no agreement is reached, the court decides based on the best interests of the child. For children aged 7 or over — the court asks the child’s preference. For children under 36 months — the child is placed in the mother’s direct care (unless the mother is not in a position to provide care).

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Analysis and Application

3 Common Divorce Scenarios for Overseas Vietnamese

Scenario 1 — One party is an overseas Vietnamese; one party is in Vietnam (the majority of cases).

This is the most common situation. One person is settled abroad (with or without foreign nationality); one person is still in Vietnam. Under Article 127(2) of the Law on Marriage and Family 2014:

• If the couple has no common habitual residence → Vietnamese law applies;

• Vietnamese courts have jurisdiction because one party is habitually resident in Vietnam.

Specifically: the regional People’s Court (TAND khu vực) where the party in Vietnam is habitually resident handles first-instance proceedings under the Civil Procedure Code amended 2025.

Scenario 2 — Both parties are overseas Vietnamese, both settled abroad, with assets in Vietnam.

More complex. Under Article 127(2):

• If the couple has a common habitual residence abroad → the divorce is governed by the law of the country of habitual residence;

• The court of the country of residence handles the divorce;

• But for property that is real estate in Vietnam — under Article 127(3), Vietnamese law applies and the matter is resolved by Vietnamese courts.

In practice: overseas Vietnamese typically divorce in their country of residence first, then either file a separate petition in Vietnam to divide common property in Vietnam, or apply for recognition of the foreign divorce judgment in Vietnam and then deal with the property.

Scenario 3 — Overseas Vietnamese who have already divorced abroad and need to address the consequences in Vietnam.

A divorce judgment from a foreign court does not automatically take effect in Vietnam — it must go through the recognition and enforcement procedure under the Civil Procedure Code. Once recognised, the judgment takes effect for subsequent Vietnamese procedures (property division, civil status re-registration, civil registry).

The Divorce Roadmap in Vietnam — 5 Steps

Step 1 — Prepare the dossier. Divorce petition (mutual consent or unilateral); copy of the marriage registration certificate (apply for a certified copy at the place of registration if lost); copies of children’s birth certificates (if any); title documents for common property (land use rights certificates, savings passbooks); passport and documents proving Vietnamese origin (if applicable as an overseas Vietnamese); if the other spouse is in Vietnam — copy of their national ID card.

Step 2 — File the petition at the competent regional People’s Court. If one party is habitually resident in Vietnam, file at the regional People’s Court where that party is habitually resident. If both parties are abroad and have property in Vietnam, file at the regional People’s Court where the property is located. The petition may be filed through an authorised representative (with consular legalised power of attorney).

Step 3 — Mediation at the court. The Civil Procedure Code provides that mediation is mandatory before a divorce hearing (except in certain special cases). The court summons both parties to participate in mediation — overseas Vietnamese may authorise a lawyer to represent them, or attend by video conference if the court permits. If mediation succeeds (both withdraw the petition or reach an agreement) — the court issues a recognition decision. If mediation fails — the case proceeds to a hearing.

Step 4 — First-instance hearing. The court considers the claims: pronouncing divorce, dividing common property, child custody, and support. The overseas Vietnamese person may request the case to be heard in their absence (if they have granted a power of attorney) or attend the hearing. In complex cases (large property disputes), the court typically requires parties to appear at least once.

Step 5 — Judgment becomes effective + enforcement. The first-instance judgment becomes effective 15 days after pronouncement if not appealed. Once effective, the subsequent procedures are: updating civil status at the civil registration authority (issuing a new civil status confirmation certificate); transferring title to assets in accordance with the judgment (if property is divided); making support payments (if obligated).

Division of Common Property — the Most Sensitive Point

Property relations during the marriage: under the Law on Marriage and Family 2014, property formed during the marriage is presumed to be common property — even if the title certificate names only one party. Overseas Vietnamese often make this mistake: “the house is in my name” does not automatically mean it is separate property if it was acquired during the marriage.

Separate property: property formed before the marriage; property gifted or inherited as separate property during the marriage; income from separate property that is kept separate. Overseas Vietnamese must prove the origin — bank statements, inheritance documents, gift contracts.

Principle of division: common property is divided equally if no other agreement exists, taking into account each party’s contribution (Article 59 of the Law on Marriage and Family 2014). Real estate is typically divided by: one party retaining the asset and paying the other party; or selling and splitting the proceeds.

Child Custody — Complex Across Borders

When the child is in Vietnam and the overseas Vietnamese parent wishes custody, the court considers:

• The living environment in the country of residence compared to Vietnam;

• The capacity for direct care (can the overseas Vietnamese parent be present with the child regularly?);

• Support networks (family, relatives);

• The child’s educational, linguistic, and cultural interests;

• The preference of a child aged 7 or over.

In practice: many overseas Vietnamese have been granted custody upon demonstrating that the living conditions abroad are better and that they will bring the child to live with them in their country of residence. The court also considers a specific plan (visa for the child, school, place of residence).

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Real-World Situation

Case 1 — Mr M, settled in the US for 12 years, wife and child in Ho Chi Minh City. Mr M and Ms N married in Vietnam in 2008 and have a 10-year-old son. He went to the US in 2014 under family reunification. Over 12 years he returned to Vietnam only 4 times, each time for 2–3 weeks. In 2026, he wants to divorce because he has built a new life in the US. Ms N does not consent to divorce. Process: he files a unilateral divorce petition at the regional People’s Court with jurisdiction where Ms N is habitually resident (Ho Chi Minh City); he authorises a lawyer to represent him. Mediation at court fails — the case proceeds to hearing. Main issues: he wants to divide common property (a house purchased in 2010 for VND 3 billion at the time, now worth approximately VND 18 billion); she wants custody and support. After more than a year of proceedings, the court rules: divorce; the house is divided equally (she retains the house and pays him VND 9 billion); she has custody; he pays VND 10 million per month in support.

Case 2 — A couple both settled in Australia, with a house in Da Nang. Mr K and Ms H settled in Australia from 2010, both having naturalised as Australian citizens. In 2025 they divorced before the Australian court under Australian law — the judgment divides their assets in Australia. But a house in Da Nang (purchased in 2018, titled in Mr K’s name) remains — the Australian court has no jurisdiction over real estate in Vietnam (Article 127(3) of the Law on Marriage and Family 2014). The next Vietnamese procedure: Ms H files at the regional People’s Court in Da Nang requesting division of common property; simultaneously she files the Australian divorce judgment seeking recognition and enforcement. The Vietnamese court recognises the divorced status and then divides the Da Nang house under Vietnamese law.

Case 3 — Mutual consent divorce — the simplest case. Ms D settled in Germany for 8 years; Mr T is still in Hanoi. They are no longer compatible — they agree to divorce, have agreed to divide property (each keeps what is titled in their own name, no dispute), and have no children together. Ms D authorises a lawyer in Hanoi (via a consular legalised power of attorney); Mr T appears in person. Both sign a mutual consent divorce petition together with a property division agreement. The court mediates and recognises the mutual consent divorce. The entire process takes 4 months. Ms D does not need to return to Vietnam.

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Frequently Asked Questions

Can an overseas Vietnamese person divorce a spouse living in Vietnam?

→ Yes, absolutely.

According to lawyer Lê Bình Phương, Article 127(1) of the Law on Marriage and Family 2014 is clear — divorce between a Vietnamese citizen and a foreigner, or between parties with a foreign element, is resolved by the competent authority of Vietnam. An overseas Vietnamese person divorcing a spouse still in Vietnam is the typical situation.

Which Vietnamese court has jurisdiction to resolve a divorce for an overseas Vietnamese person?

→ The regional People’s Court (TAND khu vực) at first instance; the provincial-level People’s Court on appeal.

According to lawyer Lê Bình Phương, the Civil Procedure Code amended 2025 (effective 1 July 2025) transferred first-instance jurisdiction for cross-border divorce cases to the regional People’s Court. This is an important change from the old framework — previously such cases fell under provincial-level People’s Courts. Appeals are handled by the provincial-level People’s Court.

Does an overseas Vietnamese person need to come to Vietnam to divorce?

→ Not necessarily, but sometimes required.

According to lawyer Lê Bình Phương, the divorce petition may be filed through an authorised representative holding a consular legalised power of attorney. The court may proceed with the authorised representative acting on behalf of the party. However, in cases involving large property disputes or child custody disputes, the court typically requires the overseas Vietnamese person to appear at least once — so the court can hear their views directly.

Which law applies when an overseas Vietnamese person divorces?

→ Depends on the place of habitual residence and the type of asset.

According to lawyer Lê Bình Phương, Article 127(2) of the Law on Marriage and Family 2014 provides that for the divorce of a Vietnamese citizen not habitually resident in Vietnam, the law of the country of the couple’s common habitual residence applies; if there is no common habitual residence, Vietnamese law applies. For property that is real estate abroad (clause 3) — the law of the country where the real estate is located governs. Real estate in Vietnam — Vietnamese law governs.

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Important Notes

A legally valid marriage in Vietnam is a prerequisite. Before discussing divorce, check: has the marriage been validly registered in Vietnam? Many overseas Vietnamese couples married according to custom without registering — legally there is no marriage, and no divorce is required (but the property relationship and matters concerning children need to be addressed differently).

Property formed before the marriage — must be provable. If an overseas Vietnamese person has property in Vietnam purchased before the marriage, that is separate property — not divided upon divorce. But there must be evidence: a sale contract dated before the marriage, payment receipts, a title certificate registered before the marriage registration. Without evidence → presumed to be common property.

Do not unilaterally sell or transfer common property before the divorce. While the divorce case is being processed, the parties are obliged to maintain the status quo of common property. A party who unilaterally sells, donates, or transfers property may have the transaction declared void by the court; more seriously, they may be found to have dissipated assets — affecting both the property division ruling and the child custody determination.

Child custody — a specific plan is needed before making the request. An overseas Vietnamese person wishing custody must present a plan: place of residence (specific address in their country of residence), school (already contacted?), visa for the child (which visa category is planned?), care arrangements when the parent is at work, a Vietnamese-language environment for the child. The more specific the plan, the more credible the court will find it.

A foreign divorce judgment — needs recognition in Vietnam to be valid. If you have already divorced before courts in Australia, the US, Canada, Germany, or France, that judgment does not automatically take effect in Vietnam. To deal with property in Vietnam, re-register civil status, or remarry in Vietnam — you must complete the recognition and enforcement procedure under the Civil Procedure Code. This procedure takes 3–6 months.

Cross-border support — enforcement is complex. If the court orders an overseas Vietnamese person to pay support for a child in Vietnam, Vietnamese enforcement authorities find it difficult to compel compliance if the overseas Vietnamese person does not cooperate voluntarily. Vietnam has judicial assistance treaties with some countries — check in advance. The best practical outcome: agree on a large voluntary lump-sum payment, or a bank account set up for automatic monthly transfers.

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Related Articles

Further analysis on the topic of overseas Vietnamese and divorce by lawyer Lê Bình Phương:

• Overseas Vietnamese powers of attorney for representatives in Vietnam — consular legalisation

• Divorce and child custody — what you need to know

• Dividing common property on divorce

• Mutual consent divorce filing in Saigon without household registration there

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Conclusion

An overseas Vietnamese person divorcing a spouse in Vietnam — legally it is not as complex as many people think, but it requires a clear strategy depending on the three scenarios: one overseas Vietnamese party and one party in Vietnam (the majority); both overseas Vietnamese parties with assets in Vietnam; or having already divorced abroad and needing to address the consequences in Vietnam.

Four things to do immediately: (a) check whether the marriage has been validly registered in Vietnam; (b) inventory common property and prepare evidence of separate property (if any); (c) if there are children — prepare a specific care plan before requesting custody; (d) execute a consular legalised power of attorney if you cannot return to Vietnam frequently.

Do not unilaterally deal with common property while the divorce case is being processed — this is a common mistake and can reverse the subsequent ruling.

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If you need advice on your specific cross-border divorce situation:

Contact MBA., Esq. Lê Bình Phương directly: 0966 45 45 45

(Remote consultation by phone/Zalo available for clients abroad. Can represent under consular legalised power of attorney for the entire divorce proceeding in Vietnam.)

See also: Who is Lawyer Lê Bình Phương?

Analysis by MBA., Esq. Lê Bình Phương.