Is Divorce Possible When Spouse in Jail?

A spouse's prison sentence does not automatically end marriage in Vietnam. Learn how to prepare a divorce request, notification and disputed family issues.

Definition: What is divorce when a wife or husband is serving a prison sentence?

Divorce in cases where a wife or husband is serving a prison sentence refers to a situation in which one party to a marriage is serving a custodial sentence under a criminal judgment that has taken legal effect, while the remaining party, or both parties, request the Court to terminate the marital relationship in accordance with the Law on Marriage and Family.

This is a special situation but not uncommon in practice, and Vietnamese law permits resolution if statutory conditions are satisfied.

Can a divorce be filed when a wife or husband is serving a prison sentence?

The answer is: YES.

Pursuant to Article 51 of the Law on Marriage and Family 2014, a wife or husband has the right to request the Court to resolve divorce as follows:

1. A wife, a husband, or both parties have the right to request the Court to resolve divorce.
2. Parents or other close relatives have the right to request the Court to resolve divorce when one party suffers from mental illness or another condition causing inability to perceive or control behavior, and is simultaneously a victim of domestic violence committed by the other party, resulting in serious impact on life, health, or mental condition.
3. A husband has no right to request divorce when the wife is pregnant, has given birth, or is raising a child under twelve months of age.

Accordingly, current legal regulations still allow one party, either the wife or the husband, to request divorce when the remaining party is serving a custodial sentence.

What form of divorce applies when a wife or husband is serving a prison sentence?

When a wife or husband is serving a custodial sentence, the remaining party may initiate unilateral divorce procedures. Specifically, Clause 1, Article 56 of the Law on Marriage and Family 2014 provides:

When one party requests divorce and conciliation at the Court fails, the Court resolves divorce if there is evidence of domestic violence or serious violation of marital rights and obligations, causing the marriage to fall into a serious condition, making cohabitation impossible, and preventing achievement of the purpose of marriage.

Accordingly, unilateral divorce requires satisfaction of one of the following grounds:

• Serious domestic violence; or
• Serious violation of marital rights and obligations, together with all of the following elements:
  • The marriage falls into a serious condition
  • Cohabitation cannot continue
  • The purpose of marriage is not achieved

Therefore, to ensure a smooth divorce process, the requesting party must prove the existence of one of the above grounds and submit relevant supporting evidence for Court consideration.

Divorce procedures when a wife or husband is serving a custodial sentence

Basic divorce documents include:

• Divorce petition, unilateral or mutual
• Original marriage registration certificate
• Documents showing the residence of the requesting party
• Birth certificate of children, if any
• Documents proving ownership of common property, if any
• Documents showing existence of joint debts, if any
• Documents proving that a wife or husband is serving a custodial sentence

According to the Civil Procedure Code, the timeline for unilateral divorce resolution is as follows:

• Three working days for assignment of a Judge to review the divorce petition
• Five working days from assignment for case acceptance, transfer to a competent authority, or return of the petition
• Four months for preparation for trial after case acceptance
• An additional two months in complicated cases or due to force majeure or objective obstacles
• One month for issuance of the decision to bring the case to trial
• Up to two additional months for extension of the trial opening for legitimate reasons

Accordingly, in the fastest scenario, unilateral divorce resolution may take approximately four months.

Should a lawyer be engaged for divorce when one party is serving a prison sentence?

Divorce in cases where a wife or husband is serving a prison sentence often involves multiple difficulties, including:

• Inability to obtain direct signatures
• Difficulty in collecting documents and evidence
• More complex procedural requirements

A divorce lawyer may provide assistance through:

• Drafting and issuing necessary legal documents and preparing complete and valid case files to ensure an efficient divorce process
• Acting as representative in dealings with the Court and detention facilities
• Protecting lawful rights and interests in disputes related to children, common property, or joint debts
• Providing clear and specific legal consultation to enable appropriate preparation

A wife or husband serving a custodial sentence remains subject to divorce in accordance with the law. However, due to the special nature of such cases, legal consultation is strongly recommended to avoid procedural delays and potential legal risks.

How legal support can help

• Advice on the right to request the Court to settle a divorce;
• Advising on conciliation procedures at the grassroots level;
• Advice on divorce proceedings;
• Advising on grounds for divorce;
• Advising on regulations on consent divorce and divorce at the request of one party;
• Advice on principles of the property division upon divorce and procedures for property division;
• Advice on divorce settlement procedures at the Court.

>>> Read more: Resolving Spousal Relationships in Unilateral Divorce

>>> Read more: Can a Pregnant Wife Get a Divorce in Vietnam?