Grounds for divorce and divorce cases according to the Law on Marriage and Family 2000

In recent years, the number of couples requesting divorce due to family conflicts has increased. Usually, conflicts can arise between husband and wife, but they can also arise between husband and wife and the parents, brothers, sisters, and siblings of one of the two parties. The conflicts can be very small, just due to disagreements in daily life, in treating family members, in raising children... but because the couple lacks sympathy, is not willing and is stubborn, the conflicts become more and more intense, leading to one or both parties being unable to stand each other and requesting a divorce. For example, there is a case where there is a worker in the house, the husband tells the wife to cook, the wife does not cook, the husband slaps the wife so the wife goes back to her parents' house, the husband does not call, the wife does not come back by herself, after nearly a year of not seeing each other, not caring about each other, the husband requests a divorce...

Thus, the manifestations of a serious situation where the common life cannot be prolonged are very different, diverse and rich. If the consideration and assessment is not careful, mistakes will be made. Given this reality, there should be specific regulations in determining whether the marital relationship has reached a serious level where the common life cannot be prolonged.

Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Supreme People's Court's Judicial Council guiding the application of a number of provisions of the 2000 Law on Marriage and Family clearly stated:

“8.a. According to the provisions of Clause 1, Article 89, the Court shall decide to grant a divorce if it finds that the situation is serious, that the common life cannot be prolonged, and that the purpose of marriage cannot be achieved.

a.1. Considered a serious condition when:

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- Husband and wife do not love, respect, care for, or help each other, such as: each person only knows his or her own duty, neglecting the wife or husband.

The husband can live however he wants, and has been reminded and reconciled many times by his relatives or by agencies and organizations.

- Husband or wife always mistreats or tortures each other, such as: regularly beating, or having other behaviors that offend each other's honor, dignity and reputation, and has been reminded and reconciled many times by their relatives or agencies, organizations and groups.

- A couple is not faithful to each other, such as: having an extramarital affair, having been reminded and advised by the husband or wife or their relatives, or by an agency or organization, but still continuing to have an extramarital affair.

a.2. In order to have a basis for determining that the couple's common life cannot be prolonged, it is necessary to base on the current situation of the couple having reached a serious level as guided in point a.1. section 8 of this article. If the reality shows that despite being reminded and reconciled many times, the couple still continues to have an extramarital affair or continues to live separately, ignore each other or continues to abuse, torture, and insult each other, then there is a basis for determining that "the couple's common life cannot be prolonged".

When the marital relationship is in a “serious state, the common life cannot be prolonged”, it often leads to the consequence of “the purpose of marriage not being achieved”. The purpose of marriage under the socialist regime is to build a prosperous, equal, progressive, happy and sustainable family (Article 1 of the 2000 Law on Marriage and Family). The Government’s report on the 1959 Law on Marriage and Family to the National Assembly clearly stated: “The purpose of marriage under our regime is to build happy, democratic and harmonious families, in which everyone loves, supports and helps each other to progress and ensure the health of the race, the good future of the children, the prosperous development of society and make everyone in the family excited to work and produce, together improve their lives and build the country” .

That shows the harmonious and close relationship between the private and social aspects in the marriage relationship.

The private aspect of a marriage is the happiness of the couple themselves in the marriage. The happiness of a couple is not only the love between husband and wife but also includes many aspects of the couple's life in particular and of the family in general. In the happiness of a couple there is also joy and pride in the responsibilities they have fulfilled to their family and society.

The benefits of society in marriage are reflected in the sustainable existence of the marital relationship of each couple. Not only the husband and wife, the children but also the State and society are interested in building and strengthening the marital relationship, making the marriage sustainable, the family harmonious and happy. The sustainability of marriage is the sustainability of each family and makes society sustainable. In a warm and happy family, the family members are all excited in working, producing, creating many products for society. Children are cared for and educated to become useful citizens for society.

The benefits of society are also reflected in marriage through ensuring the interests of children. Under the socialist regime, "children are both members of the family and members of society - the future owners of the country ... ". Therefore, the obligations of husband and wife and parents are to "love, look after, care for, protect the rights and legitimate interests of their children, respect their opinions, take care of their studies and education so that their children develop healthily in terms of physical, intellectual and moral aspects, become filial children of the family, useful citizens for society" ... (Article 34 of the Law on Marriage and Family 2000); and "must set a good example for their children in all aspects; closely coordinate with schools and social organizations in educating their children" (Article 37 of the Law on Marriage and Family 2000) ... The family, the State and society all have obligations in caring for and educating the younger generation, ensuring that

I become a useful citizen for society. Through practice and theory, it is shown that good human qualities are developed in a good family, then that family will bring to society people with good moral qualities, steadfast, determined, dare to overcome all difficulties, sacrifice for the greater good, for socialism.

In the socialist regime, the interests of each family member, the interests of the family and the interests of society are closely linked and organically related to each other. Uncle Ho taught: “Many families together make up a society. The better the society, the better the families, and the better the families, the better the society.”

In other words, if the nucleus of society does not exist normally and healthily, and if the relationship between husband and wife is not beneficial to the family and society, divorce is inevitable.

“The situation is serious, the common life cannot be prolonged, the purpose of marriage cannot be achieved” are related to each other. When the relationship between husband and wife is in a serious situation, the common life cannot be prolonged, which will lead to the consequence that the purpose of marriage cannot be achieved. There cannot be a warm, happy family when there are deep conflicts between husband and wife, they no longer want to live together, even no longer want to see each other.

In reality, married life is very diverse and rich. Therefore, the manifestations of "serious situation, life together cannot be prolonged" are also very diverse. Through the practice of trial, it is shown that the assessment is difficult and complicated. The grounds for divorce prescribed by law are very general, highly general. Meanwhile, marital conflicts and the reasons leading to the couple's request for divorce are specific. Therefore, there are some opinions that it is necessary to prescribe more specific grounds for divorce to facilitate the trial work of the Court. In our opinion, it is impossible to prescribe specific grounds for divorce. Because, if specific grounds for divorce are prescribed, it means that the Court must prescribe in which cases the couple is allowed to divorce, and thus it will easily fall into

In the context of formalism, divorce settlement is based on the external manifestation of the marital relationship. Therefore, the grounds for divorce stipulated in the Law on Marriage and Family must still be highly general, and to be specific, the Supreme People's Court has provided guidance in Resolution No. 02 presented above. Here, we would like to distinguish the grounds for divorce and the causes, reasons, and motives for divorce to clarify the provisions of the law as well as the practice of adjudicating specific cases by the Court.

Reasons for divorce:

Causes of divorce are phenomena and events that affect the marriage and cause it to break down.

According to current law, when resolving divorce, judges only rely on the grounds for divorce stipulated in the law and not on the cause of divorce. That means that the cause of divorce is not the basis for the Court to decide on the divorce. However, when resolving divorce, judges always clarify the cause of the husband and wife's request for divorce in order to have a basis for assessing the nature of the marital relationship.

The reasons for divorce are diverse and abundant. Each couple who files for divorce comes from different causes. It may be because the parties do not have a full and correct understanding of the meaning and importance of marital relationships in life. From there, they do not have the awareness to care for the stable existence of these relationships, leading to the husband and wife treating each other arbitrarily, not respecting each other's feelings, dignity, reputation, and honor. This situation lasts until the husband and wife cannot stand each other and divorce will occur. The reason for divorce may also be due to the lack of responsibility of the husband and wife, or the decline in morality. In a part of the population, due to narrow-minded, selfish views, only knowing how to live for themselves, chasing after trivial fame and profit and low desires, they have forgotten their responsibilities to their wives, husbands, families and society, forgotten their obligations as wives, husbands, fathers, mothers, children and grandchildren. From then on

leading to family members feeling unhappy, especially husband and wife. This is the main cause of divorce.

Besides, other factors can also be the cause of divorce such as economic and social development. Market economy has made the country's economy develop, people's income is higher, life is more prosperous, leading to a part of the population changing their concept of marriage and family. They consider marriage as just a relationship to satisfy their temporary interests, husband and wife love is completely overshadowed in their souls. Thus, divorce is also easy to happen. Or other causes also have a significant impact on the sustainable existence of marriage and are the cause of divorce such as due to limited propaganda and dissemination of laws, especially the Law on Marriage and Family, so people do not fully understand their legal obligations when they enter into marriage as well as the consequences of divorce.

Finding out the cause of divorce cannot be based on the reasons given by the parties but must analyze the reasons and verify the nature of the marital relationship to have an accurate assessment of the cause of divorce.

Reasons for divorce

The reasons for divorce are the events or circumstances that the parties cite to explain their request for divorce and that is also the excuse for them to ask the Court to grant a divorce.

The reasons for divorce are also very diverse and rich. It can be due to violation of the monogamous marriage regime: the husband or wife marries or lives as husband and wife with another person, so the other person relies on that to file for divorce. The reason for divorce can also be due to conflicts in the family, the husband and wife do not have the same views on life, so conflicts often occur in the marital relationship; one of the husband and wife commits adultery; one of the husband and wife goes missing; one of the husband and wife is unable to have children; one of the husband and wife goes to work, study, or work abroad but has not returned for many years after the expiration date... Thus,

The reasons for divorce can be legitimate or illegitimate. Legitimate reasons mean that for those reasons the marital relationship becomes serious, the common life cannot be prolonged, then the Court can allow the couple to divorce. This is completely consistent with the provisions of the Civil Code. Article 42 of the 2005 Civil Code stipulates: "The wife, husband or both have the right to request the Court to resolve the divorce".

Motive for divorce

The motive for divorce is the psychological state of the parties, which motivates them to file for divorce.

Normally, the parties themselves cite the reasons for divorce as stated in the divorce petition or in their testimony before the Court. However, the motives for divorce are often kept secret by the parties, and only during the investigation, verification, and reconciliation process do the judges find out. For example, the husband files for divorce from his wife in order to marry his lover, the wife divorces her husband in order to marry someone richer...

The couple's motives for divorce can be good or bad. When resolving a divorce, judges must not be prejudiced against bad motives but must carefully consider and assess to find the best solution, in accordance with the wishes of the parties, in accordance with the nature of the marital relationship and in accordance with the provisions of the law.

Thus, when resolving a divorce, judges must clearly identify the reasons why the couple requests a divorce, the reasons they give, and the motives for the divorce, in order to make accurate judgments and assessments of the nature of the marital relationship. From there, we can see that resolving a divorce must be based on the grounds for divorce as prescribed by law (Article 89 of the Law on Marriage and Family 2000). The reasons for divorce, the motives for divorce, and the reasons for divorce are just

Factors to assess the level of conflict between husband and wife, on that basis, to resolve divorce correctly and accurately.

In short: when resolving a divorce, the Court must objectively and correctly assess the nature of the marital relationship. Only when the marital relationship has become "serious, the common life cannot be prolonged, and the purpose of marriage cannot be achieved" will the Court grant a divorce.

According to the provisions of Article 89, Clause 2 of the 2000 Law on Marriage and Family: In case the wife or husband of the person declared missing by the Court requests a divorce, the Court shall grant the divorce.

Thus, the Court's decision to declare a missing person is also considered a basis for divorce if the wife or husband of the person declared missing requests a divorce. Previously, the Law on Marriage and Family of 1959 and 1986 of our State did not regulate this issue. However, in the practice of adjudicating divorce cases over the past many years in our country, when there was no Civil Code of 1995, the Court still resolved divorce at the request of the parties when their wives or husbands were declared missing (Section 3 of Resolution No. 03/1990/NQ/HDTP dated October 29, 1990 of the Judicial Council of the Supreme People's Court).

This basis for divorce is easy to determine. Only need a decision declaring the husband or wife missing and a request from the other person, the Court has resolved the divorce. The Law on Marriage and Family stipulates that this is a basis for divorce, which is completely consistent with the purpose of marriage. If one of the spouses is declared missing, it means that they have been missing for two years without any reliable 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 the rights of the wife or husband at home regarding personal and property interests, and also to strengthen family relationships.

Grounds for divorce and divorce cases according to the Law on Marriage and Family 2000 - 7

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