Divorce When One Spouse Has a Mental Illness

Divorce involving a spouse with mental illness in Vietnam requires care over legal capacity, representation, evidence and the protection of family interests.

Is Divorce Permitted When a Spouse Has a Mental Illness?

Pursuant to the Law on Marriage and Family, the Court may grant a unilateral divorce petition where grounds exist to determine that the marital relationship has seriously deteriorated, common life cannot continue, and the purpose of marriage has not been achieved.

In cases where one spouse has a mental illness:

• If the ill person retains cognitive capacity, that person has the right to request divorce or participate in legal proceedings.
• If the ill person has lost civil act capacity, divorce proceedings shall be conducted through a lawful representative.

Therefore, the law does not prohibit divorce in this circumstance. However, the case will be examined with great caution in order to ensure protection of rights and lawful interests of a vulnerable person.

Child Custody When One Spouse Has a Mental Illness

Child custody constitutes a matter of special concern for the Court. Based on the principle of ensuring comprehensive development of children in all aspects, the People Court will assess:

• Capacity to care for and educate the child;
• Financial conditions;
• Stable living environment;
• Mental health condition of the father or mother.

In the majority of cases, where mental illness seriously affects cognitive ability and behavioral control, the ill person will not be granted direct custody of the child.

However, visitation rights remain protected, provided that visitation does not cause danger or negative impact on the child.

Property Division in Divorce Involving Mental Illness

Pursuant to Clause 2, Article 59 of the Law on Marriage and Family, joint property shall, in principle, be divided equally between the parties upon divorce. However, where statutory factors are present under this legal basis, joint property may be allocated to one party in a greater proportion, specifically:

a) Circumstances of the family and of the spouses;
b) Contribution of each spouse to the creation, maintenance, and development of joint property. Domestic labor performed within the family is deemed income-generating labor;
c) Protection of legitimate interests of each party in production, business activities, and profession in order to enable continued income generation;
d) Fault of each party in violation of rights and obligations of husband and wife.

Where one party permanently loses working capacity due to mental illness:

• The Court may consider humanitarian factors;
• Ensure minimum living conditions for the ill person;
• Evaluate contribution during the marriage period.

In addition, if the other party commits serious fault, for example domestic violence or abandonment of the ill person, such circumstances may also affect property distribution.

Legal Risks to Be Noted

Divorce in this situation involves multiple legal risks, including:

• Insufficient medical documentation proving medical condition;
• Disputes between two families;
• Prolonged complaints or appeals;
• Arising guardianship disputes.

Due to sensitive and complex nature, a divorce petitioner should:

• Collect complete medical records;
• Prepare evidence regarding marital condition;
• Seek legal advice prior to filing a petition.

Careful preparation facilitates transparent and lawful resolution.

In conclusion, divorce where a husband or wife has a mental illness constitutes a special case requiring careful legal and ethical consideration. Vietnamese law permits divorce under such circumstances while prioritizing protection of vulnerable persons and rights of children.

Where serious medical factors or complex disputes are involved, consultation with a qualified lawyer represents a prudent measure to safeguard lawful rights and interests.

How legal support can help

Jurion & Partners offers comprehensive legal services designed to help clients achieve a fast divorce while safeguarding their rights and interests. Our services include:

• Consulting on mutual consent and unilateral divorce procedures;

• Reviewing, drafting, and organizing all required divorce documents;

• Representing clients during negotiations on property division and child custody;

• Advising on financial settlements, spousal support, and child support;

• Assisting with recognition and enforcement of foreign divorce judgments in Vietnam;

• Representing clients before the People Court in divorce proceedings;

• Supporting post-divorce procedures, such as civil status registration updates.

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