Concept and Characteristics of Law Application on Divorce Grounds

spiritual life of children. But if the husband and wife are still determined to divorce, the Court will base on the provisions of the law to resolve.

From the above analysis and according to current legal regulations, it can be understood that divorce is a legal event recognized by the Court by a decision recognizing a consensual divorce or by a judgment to terminate the marital relationship and terminate the rights and obligations of the spouses to each other.

1.1.2. Content of grounds for divorce

In the concept of divorce, the viewpoint of our state is mentioned, allowing husband and wife to freely divorce. This does not mean that the Court applies grounds for divorce arbitrarily according to the wishes of the husband and wife. Divorce settlement must ensure the interests of the husband and wife on the one hand, and the interests of children, other family members and society on the other hand. Therefore, the State must control divorce by determining the necessary and sufficient conditions to allow the termination of the marital relationship before the law.

Divorce settlement is based on the essence of the relationship between husband and wife, on the basis of objective assessment without any subjective will of the Court officials or the parties. Therefore, divorce settlement is not based on the fault of the husband and wife. From the settlement point of view: “Divorce is only the confirmation of an event: this marriage is a dead marriage, its existence is only superficial and deceptive. Of course, it is not the arbitrariness of the legislator, nor the arbitrariness of individuals, but only the nature of the event that determines whether the marriage is dead or not. Because, as everyone knows, the confirmation of the dead event depends on the essence of the problem, not on the wishes of the parties concerned... The legislator can only determine the conditions in which the marriage is allowed to break up. That is, in which, in essence, the marriage itself has been

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broken. The Court's granting of a dissolution of marriage can only be a record of its internal dissolution[1].

The law needs to make accurate and precise provisions when regulating the grounds for divorce. Based on those provisions, the Court can correctly apply those provisions to each specific case to resolve the divorce. This is extremely important, because divorce is when married life has truly ended, it is the final solution that both spouses aim for. After divorce, there are a series of legal consequences such as: child custody, right to change child custody, alimony obligations, debt payment obligations... Therefore, the clearer, more specific and consistent the law on the grounds for divorce is, the more convenient and accurate the application process will be.

From the above viewpoint, it can be seen that the Socialist Republic of Vietnam stipulates scientific grounds for divorce, reflecting the reality of the broken marital relationship. The Court's granting of divorce is a recognition of a reality that has existed in the marital relationship and cannot be improved. With such grounds for divorce, it will ensure that when the Court allows a couple to divorce, it is completely consistent with the reality of conflicts in married life. Allowing a couple to divorce in cases where the marriage cannot be prolonged and saved is a liberation for both the couple and society.

Along with the development of the socio-economy, the grounds for divorce over time have also been amended, supplemented and replaced appropriately, contributing significantly to the resolution of divorce cases.

Law on Marriage and Family 1959 (Article 6), Law on Marriage and Family 1986 (Article

40) and the 2000 Law on Marriage and Family (Article 89) stipulate that whether both spouses agree to divorce or one spouse requests a divorce when the marital conflict is serious, the common life cannot be prolonged, the purpose of marriage

If the parties fail to reach an agreement, the Court shall decide to grant a divorce. The provisions on the grounds for divorce aim to ensure the personal freedom of the spouses in family relations. At the same time, it aims to ensure the reconciliation of conflicting interests between husband and wife, including the interests of children, expressing the will of the class in a voluntary, equal, democratic marriage and within the framework of the law. When regulating the grounds for divorce, it is necessary to ensure legality, which means that the contents and necessary and sufficient conditions for the settlement of the spouses must be respected and thoroughly implemented by the parties. If the provisions on the grounds for divorce do not ensure legality, do not ensure the rights of the spouses and other family members, it will lead to lax compliance with the law and may lead to violations or non-voluntary compliance with the law.

In addition to the legality, when regulating the grounds for divorce, it is also necessary to ensure objectivity and feasibility. That is, the provisions of the law on grounds for divorce are regulated and applied generally to all cases of divorce. However, when applied to specific divorce cases, we cannot apply them in a mechanical way. Regulations on grounds for divorce aim to ensure fairness in the rights and obligations of all parties. This includes priority for women and children. Regulations on grounds for divorce must be clear, easy to understand and applicable in real life. This requires legislators, when promulgating the grounds for divorce, to have a high level of foresight about the cases where divorce is possible, ensuring feasibility in the application of the law.

The law of our country always respects the freedom to learn about love and marriage of both men and women. At the same time, it also respects their freedom to divorce when their life together is not happy. However, the freedom to divorce must also be within certain frameworks and conditions provided by the law. In order to

Limit and avoid cases where one party, out of personal selfishness or for his or her own happiness (such as one party committing adultery), requests a divorce. In the provisions on divorce, the law restricts the husband's right to divorce when the wife is pregnant or raising a child under 12 months old (Clause 2, Article 85).

Based on the analysis of legal provisions, it can be understood that: " The grounds for divorce are the circumstances or conditions prescribed by law, when those circumstances or conditions exist, the Court will grant a divorce.

The first necessary condition is a divorce petition from the husband or wife or both. The sufficient condition is that the current state of the couple's life reflects or demonstrates severe conflicts that cannot be resolved. The couple's life together cannot continue and the purpose of the marriage cannot be achieved. Or when one of the spouses is declared missing by the court, and the other party files a request, the court will consider and resolve it.

Based on those conditions, the Court allows the couple to divorce.

1.2. CONCEPT AND CHARACTERISTICS OF APPLYING THE LAW ON GROUNDS FOR DIVORCE

1.2.1. Concept

Proper and strict implementation of the law is an objective requirement of the state management agency by law in our country today. Many laws are promulgated but rarely applied in life, which proves that state management is ineffective. Therefore, law making and law implementation have a close relationship with each other.

So what is law enforcement? Law enforcement is a process of activities with the purpose of making legal regulations come into life, creating a legal basis for the practical actions of legal subjects. Legal norms (LQPPL) are very rich, so the forms of their implementation are also different. Based on the nature of the activities, law enforcement,

Legal science has identified the following forms of law enforcement:

- Compliance with the law: Is a form of law enforcement, in which legal subjects restrain themselves and do not carry out activities or behaviors prohibited by law.

- Law enforcement: Is a form of law enforcement, in which subjects actively perform their obligations according to the law.

- Using the law: Is a form of law implementation, in which subjects actively and proactively exercise their subjective rights according to the provisions of law.

- Law enforcement (generally understood) is a form of law enforcement, in which the state relies on the law to empower state agencies, social organizations, and individuals to base on legal provisions to issue specific decisions that create, change, or terminate a specific legal relationship.

The concept of applying the law (ADPL) as mentioned above is clearly demonstrated in social life: for example, in order for ADPL to criminally hold criminals criminally responsible, the State has given the Court the power and the Court, based on specific provisions of the criminal law, will try and issue a verdict (ADPL criminal document) forcing the criminal to receive a certain penalty. Or to protect traffic safety, the State, by law, has stipulated that traffic police officers have the right to apply traffic law regulations to issue administrative penalty decisions against subjects who violate traffic laws such as running red lights, going in the wrong direction, etc. In addition, in some cases, the State also allows some social organizations to be ADPL, such as the Law on Associations allows some social organizations to be ADPL to make decisions to recruit employees to work in their organizations.

Among the forms of law enforcement, ADPL is a special form of law enforcement, because the law here is implemented by the subjects holding State power. If law compliance, law enforcement and law use are forms that all legal subjects can implement themselves, then ADPL is a form that always has the participation of the State. ADPL is a very important form of law enforcement. In which the law affects life and social relations to achieve the highest efficiency, its provisions are thoroughly implemented, because ADPL always has the intervention of the State.

In reality, if only through the forms of law implementation such as: Compliance with the law, enforcement of the law and use of the law, the law is sometimes not thoroughly implemented because the subjects do not voluntarily implement it, because these forms are only voluntarily implemented by legal subjects without the State's compulsion or enforcement.

Through analysis, it shows that ADPL has the following characteristics:

Firstly, ADPL is only carried out by competent state agencies. The law stipulates that each type of state agency is entitled to apply certain types of legal documents in certain cases.

For example, only the police, the prosecutor's office and the court are authorized by criminal law to investigate, prosecute and try criminals.

Second, ADPL is an activity of state power, showing that: ADPL agencies apply unilaterally without depending on the will of the party being applied. The implementation of regulations in ADPL documents is guaranteed by state coercion.

Third, ADPL is an activity that is conducted according to a very strict procedural order. For example, to conduct criminal ADPL, it must comply with the provisions of the Criminal Procedure Code and the Penal Code. To resolve

The decision to grant a divorce must be based on the provisions of the Law on Marriage and Family, the Civil Law and comply with the time limit prescribed in the Civil Procedure Code.

Fourth, ADPL is a creative activity. That is, the legal framework allows ADPLers to apply their scientific knowledge to ADPL creatively without being stereotyped or mechanical.

Enforcement of the law is usually carried out in the following cases:

Firstly , when it is necessary to apply coercive measures with an appropriate sanction to subjects who violate the law. For example, when it is necessary to enforce a prison sentence on a criminal, law enforcement agencies such as the Police, the Procuracy, and the Court have relied on the criminal law to conduct investigations, prosecute, try, issue judgments, determine criminal liability for the offenders and force them to comply with the penalty stated in that judgment. Or in the case of a Family Marriage judgment that requires the husband to have alimony obligations, but they have not performed them and when the wife has a request for enforcement of the judgment, the Enforcement agency forces the husband to perform the alimony obligations as prescribed in the effective judgment.

Second, when the legal rights and obligations of the subject do not automatically arise, change or terminate without the intervention of the State. For example, Article 55 of the 1992 Constitution stipulates: “Labor is the right and obligation of citizens” , but such rights and obligations only arise when there is a decision by a competent state agency or an organization or individual authorized by the state to recruit citizens to work there.

Third, when there is a dispute over the rights and legal obligations between the parties participating in a legal relationship that the parties cannot resolve themselves. For example, when a dispute arises over the rights and obligations between the parties in a civil contract that the two parties cannot discuss and resolve, they should seek help from

go to the Court and the Court, based on the provisions of law, issues a judgment determining the rights and obligations between the parties.

Fourth, in some legal relationships, the State finds it necessary to participate in inspecting and supervising the activities of the parties involved in that relationship or the State confirms the existence or non-existence of some real events or matters. For example: Confirming wills, notarizing mortgages, certifying marriage registrations, etc.

From the above analysis, we can come up with the concept: ADPL is an organizational activity, state power, in which the state, through competent state agencies, social organizations, and individuals empowered by the state, based on legal provisions, proposes an ADPL document to create, change or terminate legal relationships.

1.2.2. Characteristics of the application of law on grounds for divorce

Law enforcement in general is an activity of state power. Law enforcement on grounds for divorce has the common characteristics of law enforcement. In addition, due to the specificity of the subject of application, which is marriage and family relations, it has the following specific characteristics:

The application of the law on grounds for divorce is only applied by competent state agencies. Specifically, here, the Judges and officials of the People's Court are assigned by the state to resolve cases of marriage and family in general. In the application of the law on grounds for divorce, it must be carried out according to strict procedures. From the stage of receiving the application, accepting the application, conciliation, making decisions or judgments, all must comply with the provisions of the Civil Procedure Code, the Civil Law, the Law on Marriage and Family and the documents guiding the implementation. The Court applying the law on grounds for divorce is also performing its functions and duties. And according to the provisions of the law, currently only the Court has the authority to resolve divorce.

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