How to Handle a Divorce While You're Pregnant

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Figure 1. Thinh Tri Law - Advice on divorce procedures during pregnancy

The legitimate rights and interests of children and women are always concerned by society and protected by law. One of them is the issue of divorce when the wife is pregnant and raising a small child. In this article, let's learn about divorce procedures when the wife is pregnant with Thinh Tri Law.

KEY CONTENT SUMMARY

1.  The law does not prohibit a pregnant woman from requesting a divorce.
2. Divorce procedures when the wife is pregnant

• In case the husband and wife agree to divorce
• In case the wife unilaterally requests a divorce.

        3. Divorce while pregnant, does the wife have priority to raise children? 

1. The law does not prohibit a pregnant woman from asking for a divorce

• Pursuant to Clause 14, Article 3 of the Law on Marriage and Family 2014, a divorce is defined as the termination of the husband and wife relationship according to a judgment (in the case of a unilateral divorce) or a legal validity (if the divorce is agreed upon).
• Therefore, when the married life falls into a serious situation, the husband and wife cannot prolong their life together, and the purpose of the marriage cannot be achieved, the husband and wife can reach an agreement to ask the Court to resolve the divorce.
• In addition to termination of the relationship between husband and wife, the two also have to agree or request the Court to decide on issues of common property, child custody and child support, etc.
• However, in order to protect the legitimate rights and interests of children and women, Article 51 of the Law on Marriage and Family 2014 affirms that:

"A husband has no right to request a divorce in case his wife is pregnant, giving birth or raising a child under 12 months old."

• A husband has no right to request a divorce in case his wife is pregnant, giving birth or raising a child under 12 months old. If falling into three cases, including: the wife is pregnant, the wife gives birth, and the wife raises a child under 12 months old, the husband does not have the right to request the Court for divorce.
• That is, the law only prohibits the husband from requesting a divorce while his wife is pregnant, but does not prohibit the pregnant wife from requesting a divorce. Therefore, when the wife is pregnant, she has the right to request a divorce from the Court.
• However, if it is a case of unilateral divorce, the Court will base on Article 56 of the Law on Marriage and Family 2014 to settle the divorce. Specifically:

• The court will resolve unilateral divorce for the pregnant wife when the husband commits domestic violence.
• The husband has committed a serious violation of the rights and obligations of the husband and wife, making it impossible to continue to maintain the married life.
• Thus, while pregnancy, the husband is not entitled to request a divorce, unless the divorce is consensual or the pregnant wife has a unilateral request for a divorce, then the Court will settle the divorce for his wife.

2. Procedure for divorce while pregnancy

According to the above analysis, the two possible divorce cases while pregnancy are:

• Consent to divorce;
• The wife unilaterally asked the Court to settle the divorce.
• Thereby, the procedures in the above two cases will be conducted specifically as follows:

✔ In case the couple agrees to divorce

• Step 1: Prepare documents
  Application for amicable divorce.
  Original certificate of marriage registration.
  Certified copy of identity card including husband and wife.
  Certified copies of the birth certificates of the children (if the couple has children together).
  Certified copy of household registration book.
  Certified copy of documents proving ownership of common property (if having common property).

• Step 2: Submit your application

Such dossiers are sent by post or can be sent directly to the district-level People's Courts, where the spouses or husband and wife reside.

• Step 3: Proceed to pay the fee advance and the Court will consider the settlement of the consent divorce application.
• Step 4: The Court will prepare to consider the divorce petition and open a public meeting at the Court to deal with the request for a consensual divorce. At this time, the Court will open a mediation version for the couple.

• Step 5: Make a decision

If the conciliation is successful, the husband and wife are reunited, at this time the Court will issue a decision to suspend the settlement of the divorce request

If conciliation fails, the Court will issue a decision to recognize the consent of the divorce.

✔ In case the wife unilaterally requests a divorc

• In order to be considered by the Court for a unilateral divorce, in addition to the documents as in the case of a consensual divorce, when the wife wants to get a unilateral divorce, she needs to prepare the following documents:
• Divorce application (according to the form);
• Papers and documents proving such as videos, photos, etc., of the husband committing acts of domestic violence or the husband's failure to perform his obligations to the family.

• Unlike the consent to divorce, in the case of unilateral divorce, the court with jurisdiction is the court where the husband is residing and working (based on Article 39 of the 2015 Civil Procedure Code.
• In the case of unilateral divorce, the Court still conducts mediation for the couple. If conciliation is successful, the Court will issue a decision to recognize the agreement of the parties. If the conciliation fails, the Court will issue a decision to bring the case to trial and issue a judgment.

3. Divorce while pregnancy, does the wife have right to raise children?

 

Image 2. Thinh Tri Law - Counseling on legal rights for pregnant wife requesting a divorce

• According to Article 88 of the Law on Marriage and Family 2014, a child born during the marriage or by a pregnant wife during the marriage is a common child of the couple. Even if a child is born within 300 days from the date of termination of the marriage between the husband and wife, it is still considered a child due to the wife's pregnancy during the marriage.
• Therefore, if the pregnant wife files a petition for divorce, when the child is born, it will still be considered the common child of the couple. Therefore, even though divorced, both have rights and obligations towards the child born.
• After a divorce, if the husband and wife agree to be the person to directly raise the child, the agreement will be followed. If the couple cannot come to an agreement, the child under 36 months old will be assigned to the mother to take care of.
• Except where the mother is not qualified to be able to directly care for, nurture and educate her child. At this time, the child will be handed over to the father or another person in accordance with the law. And those who do not directly take care of and raise their children must have the responsibility to support their children.
• Thus, although the law gives priority to mothers having the right to raise children under 36 months of age, if the mother is not qualified to care for and raise the child in the best environment, she may not be able to directly take care of her child. take care and raise children.

More articles:

→ Principle of equality in divorce.

→ Cases where marriage is prohibited according to current laws.

→ Things to know about before and after marriage.

→ How to determine the common property of husband and wife during marriage.

• In the above article, Thinh Tri Law has outlined the procedure to resolve divorce when the wife is pregnant. If you have any questions regarding the above, please contact:

THINH TRI LAW LIMITED COMPANY

Hotline: 1800 6365