Factors Affecting and Applying the Law on Divorce Grounds Through Trial Practice of the People's Court in Da Nang

Marriage is a union between a man and a woman based on the principle of complete voluntariness and equality…to live together for life and build a prosperous, equal, progressive, happy, and sustainable family.

Thus, the purpose of establishing a marital relationship is to build a prosperous, equal, progressive, happy, and sustainable family. When a marriage does not achieve its purpose, the couple can divorce. To ensure the existence of marriage and build a prosperous, happy, and sustainable family, each spouse must have a sense of responsibility in fulfilling their obligations to each other, to the family and society. In particular, the couple must create conditions for each other to fulfill their obligations and personal rights. When the couple lives together and each feels happy and is completely equal to each other, the marital relationship has achieved its purpose. On the contrary, if the couple lives together but each or both of them feel tired. The two sides often insult each other mentally and physically, leading to them no longer wanting to live together. Their goal of working together to build a happy and prosperous family was not achieved, so their marriage fell apart. The original purpose of the marriage was not achieved.

Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court, at Point a3, Section 8, provides guidance on determining the purpose of marriage that is not achieved: " no longer having the affection between husband and wife; not having equality in obligations and rights between husband and wife; not respecting the honor, dignity and reputation of husband and wife; not helping and creating conditions for each other to develop in all aspects" . Thus, the above points are the basis for determining the purpose of marriage that is not achieved. If a couple living together has these manifestations, it means that they cannot build an equal, progressive, happy family together... and divorce will inevitably occur.

The above two contents of the grounds for divorce are closely related to each other. If “the situation is serious, the common life cannot be prolonged” then all

The main reason is that “the purpose of marriage is not achieved”. This shows that the relationship between husband and wife is a private relationship between two individuals but has a direct impact on the family. Therefore, the marriage relationship has great social significance. Marriage is the foundation of the family, the family is the cell of society. “If the family is good, the society is good, if the society is good, the family is even better” [34]. The sustainable existence of the marriage relationship is not only the concern of the husband and wife but also the concern of the whole society. When resolving a divorce, it is necessary to consider not only the private aspect of this relationship but also its social aspect. When resolving a divorce, judges must investigate, verify and consider the interests of the husband and wife, children, family and society in that marriage relationship. Comprehensive assessment will ensure that divorce settlement brings positive results in strengthening family relationships, promoting family development in accordance with traditional national ethics and the common interests of society.

2.1.2. Wife or husband declared missing by the court

Clause 2, Article 89 of the 2000 Law on Marriage and Family stipulates: “In case the wife or husband of a person declared missing by the Court requests a divorce, the Court shall grant the divorce”. Thus, the Court’s decision declaring the person missing is also considered the basis for divorce if the wife or husband of the person declared missing requests the Court to grant the divorce.

This basis for divorce is easy to determine. There only needs to be a decision declaring the husband or wife missing and a request from the other person for the court to grant the divorce. The law on marriage and family stipulates that this is the basis for divorce, which is completely consistent with the purpose and meaning of marriage. If one of the spouses is declared missing by the court, it is when they have been missing for two consecutive years without any confirmed information about whether that person is alive or dead. It is the absence of one of the spouses that makes their marriage exist only in form. Divorce settlement in this case is to protect

benefits to the wife or husband in terms of personal and property benefits, and also to strengthen family relationships in general.

According to the guidance in Resolution 02/2000/NQ - HDTP dated December 23, 2000, this divorce basis can be divided into two cases:

- The wife or husband simultaneously requests the Court to declare their husband or wife missing and requests a divorce. If the conditions are met, the Court will declare that person missing according to the provisions of the Civil Code and grant them a divorce. If the conditions for declaring missing are not met, the request to declare missing will be rejected and the other person's request for divorce will also be rejected.

- The declaration of a missing spouse has already occurred. After the court's judgment declaring a missing spouse becomes legally effective, the husband or wife of that person has the right to request a divorce and the Court will grant the divorce.

The grounds for divorce in the 2000 Law on Marriage and Family demonstrate high scientific and practicality. When resolving divorce, it is not only based on the fact that the love between husband and wife no longer exists, but must be based on the fact that the relationship itself has broken down, the existence of marriage is only a formality, divorce is an effective solution to free the husband and wife from the current life together full of conflicts and suffering. At the same time, it also frees other family members from a stressful, burdensome life, ensuring the interests of the husband and wife, the family and the whole society.

However, to assess the essence of the marital relationship is an extremely difficult and complicated task, requiring judges to be dedicated to their work, to have a deep understanding of the provisions of the law. And especially to have life experience as well as the ability to listen and reconcile well. If the judges' assessment is inaccurate or arbitrary, it will lead to a decision contrary to the nature of the divorce regime. Conflict between husband and wife

but not to the point of seriousness, the common life can be prolonged and the court has decided to grant a divorce, in this case it is not liberation but recklessness. In reality, there are couples, the court has granted them a divorce but then they live together again, proving that the court's assessment when resolving the divorce is not reasonable and does not reflect the true nature of the couple's common life.

2.2. FACTORS AFFECTING AND APPLYING THE LAW ON GROUNDS FOR DIVORCE THROUGH PRACTICE OF TRIAL BY THE PEOPLE'S COURT IN DA NANG

2.2.1. Overview of history, natural conditions and socio-economics of Da Nang

In national history, Da Nang is known not only as the largest port city in Central Vietnam but also as a place associated with the expansion of Dai Viet's territory many centuries ago. The traces of an international gateway associated with Dang Trong still remain, and in the echoes of history, this is an important outpost in the fight against foreign invaders in the two sacred resistance wars.

Da Nang City borders Thua Thien-Hue Province to the North, Quang Nam Province to the West and South, and the East Sea to the East. The city center is 764km north of Hanoi, 964km south of Ho Chi Minh City, and 108km northwest of Hue City. This is a city with high mountains, deep rivers, steep hills and midlands interspersed with narrow coastal plains.

In March 1965, the US landed in Da Nang and established a large mixed military base here. In 1967, Da Nang was designated by the Republic of Vietnam government as a centrally-governed city and determined the goal of building Da Nang into a political, military, and cultural center for tactical regions I and II.

In 1975, peace was restored, Da Nang (a city in Quang Nam - Da Nang province) began to restore the severe consequences of the war. Although there were still many difficulties, the restoration and development of the city achieved many results, especially in the renovation period, after 1986.

When the French attacked Vietnam, their first choice was Da Nang. The first Americans who landed in Vietnam also chose this place. That is certainly not a historical coincidence, although history, in addition to inevitability, always contains random elements. The importance and influence of Da Nang due to its first position in the Central region and the whole country can be affirmed.

Since 1997, when it became a centrally-governed city, Da Nang has undergone many positive changes. Over the past 10 years, Da Nang has continuously changed its appearance. Never before in the development process has Da Nang been so determined in its need to renew itself. The development of Da Nang is both an internal need and a response to the requirements of a leading city with a shared responsibility for the Central region in the new phase of the country.

In just the past few years, Da Nang has changed a lot. Internal movements have made Da Nang increasingly expand its stature. Starting from the plan to develop infrastructure, especially transport infrastructure, carrying out urban renovation, building a new environment in a broad sense, creating conditions for new development. Exploiting existing advantages, in recent years Da Nang has had clear changes in the pace and momentum of development. The average GDP growth rate is higher than the national average, the production value of industrial, agricultural and aquatic products has developed comprehensively... export turnover has increased, the tourism, trade and service sectors have changed positively.

Vietnam is facing new opportunities and new challenges when joining the WTO, Vietnam is facing the opportunity to reach out to the sea. Da Nang has always been a large seaport, a seaport in many senses, a port city and also an open land, a land of integration and development. Da Nang will have many opportunities and also require many efforts... The history of formation and development of Da Nang ensures trust. The new signals of this city in the current period further ensure that trust. The road ahead requires much effort but Da Nang will develop for its own survival, and also to be worthy of its position as a driving force city for the whole Central region and the Central Highlands, worthy of the role assigned by the whole country [17].

2.2.2. Development history and organizational structure of the People's Court of Da Nang city

Da Nang was liberated on March 29, 1975, making an important contribution to the complete victory of the resistance war against the US to save the country. After the liberation of the South, the country was unified, together with the Party Committee, government and people of Quang Nam - Da Nang province, they fought to protect the revolutionary government and build a new socialist regime. On February 12, 1976, the People's Court of Quang Nam - Da Nang province was established on the basis of the basic administrative units of the province. Including the Quang Nam - Da Nang Provincial Court and 16 district and town courts: People's Court of District 1, District 2, District 3, Hoi An Town, Tam Ky Town; the districts: Hoa Vang, Dai Loc, Dien Ban, Duy Xuyen, Que Son, Thang Binh, Tien Phuoc, Tra My, Phuoc Son, Hien and Giang.

By 1978, along with the separation and establishment of a number of administrative units of Quang Nam - Da Nang province, the People's Courts of District 1, District 2 and District 3 merged into the People's Court of Da Nang city under the authority of the People's Committee.

Quang Nam – Da Nang Provincial People's Court. In 1983, Tam Ky Town People's Court was divided into two administrative units: Tam Ky Town People's Court and Nui Thanh District People's Court; in 1986, Que Son District People's Court was divided into two units: Que Son District People's Court and Hiep Duc District People's Court.

For the People's Court of Quang Nam - Da Nang province, during this period, the initial staff consisted mainly of comrades from the war zone, returning from the North, and especially staff from the People's Court of Thanh Hoa province, a sister province of Quang Nam - Da Nang.

Positive activities of the People's Court of Quang Nam province

– During this period, Da Nang contributed to building new socialist relations, protecting the legitimate rights and interests of the State and citizens, making important contributions to ensuring political security and social order and safety in Quang Nam – Da Nang province, and at the same time creating an important premise for the later development stages of the People's Court of Quang Nam – Da Nang province.

In recognition of the above contributions, in 1982, the People's Court of Quang Nam - Da Nang province was honored to receive the Third Class Labor Medal from the State [31].

From 1990 to 1994, this was the period when the country as well as Quang Nam - Da Nang province transformed from a subsidized mechanism to a socialist-oriented market mechanism. Regulations on the operation of the People's Court sector began to show important innovations, especially the principles of organization and operation. Based on the new regulations of the 1992 Constitution on the organization and operation of the Court sector, on October 6, 1992, the Law on the organization of the People's Court, amended and supplemented, was promulgated. At the same time, the activities of Judges and People's Assessors of the Court sector also had