Spouse of Person Declared Missing by Court Requests Divorce

customs as well as laws. This shows inequality between men and women, between husband and wife in the family.

In reality, we see several forms of violations of the duty of fidelity, also known as adultery:

+ The husband or wife has an extramarital affair but still fully performs the rights and obligations to the family. This type of violation usually does not cause serious material consequences or violence to the family. However, it can cause quite heavy mental damage. This violation can be continuous, can be public or secret.

+ The husband or wife has an extramarital affair and does not fully exercise their rights and obligations to the family. This relationship can be public or secret and can be long-term or temporary. This case clearly has the potential to cause more serious consequences for the family than the above case.

In reality, when they violate this obligation, they often do it secretly and furtively, and very few cases are public. Therefore, there is another viewpoint that the relationship can be public or secret, but if it lasts continuously and causes certain consequences for the family in terms of spirit and material, it is considered illegal cohabitation.

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At the same time, the problem of adultery occurs frequently, has been reminded and advised by the wife or husband or their relatives or agencies, organizations, but still continues to have an adulterous relationship. From the fact that it continues many times, without any change of the guilty party, the problem of adultery can be considered as a basis for divorce.

According to the provisions of Article 147 of the Penal Code: " A person who has a wife or husband but marries or lives with another person as husband and wife or an unmarried person who marries or lives with another person as husband and wife

"A person who has sexual relations with a person he/she knows to be married, causing serious consequences or has been administratively sanctioned for this act but still commits the violation, shall be subject to a warning, non-custodial reform for up to one year, or imprisonment from 3 months to 1 year."

Thus, Vietnamese law has recognized adultery as one of the grounds for divorce. This has created a clear legal basis for the Court when resolving divorce at the request of one party. This is a very progressive provision of important significance in concretizing the 2013 Constitution on human rights and protecting human rights in the process of international integration.

Married life cannot last.

" Common life " of a couple can be understood as the coexistence of the husband and wife and family members, in which they have the same lifestyle, harmonize their personalities, interests... together solve difficulties and problems that arise during their life together, and share together to have a sustainable married life.

To have a basis for determining that the couple's life together cannot be prolonged, it is necessary to base on whether the current situation of the couple has reached a serious level or not. If the reality shows that despite being reminded and reconciled many times, the couple still continues to have an 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 life together cannot be prolonged.

The regulation on the couple's life together cannot be prolonged is determined based on the current situation of the couple reaching a serious level as instructed above. If the reality shows that despite being reminded and reconciled many times, they still continue to have an extramarital relationship or continue to live separately, ignore each other or continue to have abusive, torturing, insulting behavior towards each other,

then there is reason to believe that the couple's life together cannot last.

In cases where a couple has a serious situation but can still resolve the problem, there is an opportunity for both parties to forgive and correct their mistakes, then building and strengthening family relationships is completely possible, and divorce will not occur. However, if a couple's serious situation cannot be resolved, and this situation persists, it will lead to the breakdown of the marriage.

Family conflicts mainly arise from disagreements between husband and wife in life views, ways of thinking, family economic difficulties... they have many conflicts, misunderstandings, jealousy, envy, narrow-mindedness, conflicts in raising children... These conflicts "accumulate into big ones" and gradually grow, making married life "serious", unable to last; separation is inevitable. This problem has a significant impact on the lives of husband and wife, family members, especially the education of children.

The purpose of marriage is not achieved.

The provisions on the purpose of marriage that are not achieved are: no conjugal affection; no equality in obligations and rights between husband and wife; no respect for the honor, dignity, and reputation of husband and wife; no respect for the freedom of belief and religion of husband and wife; no help and facilitation for each other to develop in all aspects.

The purposes of two people are not always the same. Marriage may bring satisfaction to one person but not satisfy the purpose of the other or both people. Therefore, it is necessary to understand the purpose of marriage. The legislator here means the core purpose of marriage is to build a happy and sustainable family. The purpose of marriage is very rich and can change, but the purpose of marriage is fixed.

sole determination. Any marriage, if it does not achieve that purpose, is unnecessary to maintain and the couple can be divorced.

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 is the love between a man and a woman who want to live together for life, together building a happy, sustainable family on the basis of helping each other to progress. People enter into marriage with the purpose of wanting to have a happy life. Therefore, when the purpose of marriage is “not achieved”, the marital relationship often has the opposite effect. At that time, the end of marriage is resolved by divorce.

The purpose of marriage in general comes from the nature of marriage. The court cannot rely on the purpose of the two people getting married to consider whether it has been achieved or not to resolve the divorce. Most of the purpose of men and women before getting married is to build a happy, sustainable family, but there are also many marriages that are established from different purposes. Regardless of the purpose of their marriage, the purpose of a sustainable, happy marriage is still the highest standard that anyone who gets married strives for. However, the purpose of the husband or wife sometimes affects family life if it is not achieved after marriage.

The determination of the nature of the marital relationship is based on the fault of the spouses, the behavior of the parties is described as repeated many times, seriously affecting the thoughts, feelings, and common life of the couple. In this case, the fault may be due to one spouse, or the fault of both spouses. The situation of the couple falling into a serious situation, the common life cannot be prolonged, the purpose of the marriage cannot be achieved, there can be many different reasons. However, subjectively, the broken marital relationship always comes from the fact that they do not know how to protect the happiness of the family,

So it can be understood that both husband and wife are at fault, then there is enough basis and basis to resolve the divorce.

The 2014 Law on Marriage and Family reflects the adoption of regulations from several countries in the world when combining the status of marriage and the fault factor to resolve divorce.

The French Republic considers marriage to be a contract like other civil contracts. The French Civil Code (Law No. 65-570 of 1965), Article 243 stipulates: “ A husband or wife may file for divorce when all the facts originating from the husband or wife make it impossible to continue their common life”. According to this provision, one husband or wife files a petition to the Court for divorce, stating the fault of the other party and if the other party admits the fault before the Court, the Court will declare the divorce. Article 230 of the French Civil Code stipulates: “If both husband and wife file for divorce, it is not necessary to state the reason ”, in this case, the grounds for divorce are determined if the divorce is filed by one party on the grounds that the other party makes it impossible to continue their common life and the other party accepts, the judge will declare the divorce without considering the fault factor. Thus, in this case, the divorce is resolved according to the agreement of the parties. However, the French Civil Code also takes into account the actual marital status of the spouses, the Court will grant a divorce if the character of one person has changed to the point where living together is no longer possible and, according to the most reasonable predictions, cannot be restored in the future.

Thereby, it can be seen that the provision of reasons for the marriage falling into a serious state, the common life cannot be prolonged, the purpose of the marriage cannot be achieved to specify the grounds for divorce " the husband or wife commits acts of domestic violence or seriously violates the rights and obligations of the husband and wife " in the Law on Marriage and Family 2014 has created a clear legal basis for the Court when resolving the divorce at the request of one party. This is

A very progressive provision of great significance in concretizing the 2013 Constitution on human rights and protecting human rights in the process of international integration. This also creates consistency in the application of the law when resolving divorce nationwide.

2.2.2. The wife or husband of the person declared missing by the Court requests a divorce

In marriage and family relations, the disappearance of a husband or wife has a profound impact on the relationship between husband and wife and family members. It is necessary to free the husband from this special situation when he or she requests a divorce from the wife or husband who has been declared missing by the court. Clause 2, Article 56 of the 2014 Law on Marriage and Family stipulates: “In the event that the wife or husband of the person declared missing by the court requests a divorce, the court shall grant the divorce.”

This is also a provision inherited from the 2000 Law on Marriage and Family, and comes from the reality of married life. On the basis of protecting the legitimate rights and interests of the wife and husband of the person who has disappeared, the law allows them to terminate the marriage relationship by divorce. Thus, the Court's decision to declare one spouse missing is considered the basis for divorce. If the wife or husband of the person declared missing requests a divorce, the Court will grant them a divorce.

Declaring a person missing is a legal event to determine whether a specific person is missing, or whether he or she is alive or dead. According to Clause 1, Article 78 of the 2005 Civil Code, it is stipulated that: “ 1. When a person has been missing for two consecutive years or more, despite having applied all notification and search measures as prescribed by the Civil Procedure Law, but there is still no authentic information about whether that person is alive or dead, then at the request of a person with related rights and interests, the Court may declare that person missing.

The two-year period is calculated from the date of the last news about that person; if the date of the last news cannot be determined, this period is calculated from the first day of the month following the month of the last news; if the date and month of the last news cannot be determined, this period is calculated from the first day of the year following the year of the last news .

Thus, when a husband or wife has been missing for two consecutive years or more, despite having taken all the notification and search measures prescribed by the Civil Procedure Law, but there is still no authentic information about whether that person is alive or dead, then at the request of a person with related rights and interests, the Court may declare that person missing. The two-year period is calculated from the date of the last news of that person.

When a husband or wife requests a divorce from a missing person, we see that the law on marriage and family stipulates that this is a basis for divorce, which is completely consistent with the purpose of marriage. When one of the two parties is declared missing, it means that one party is not present at home, not living together, and not building a happy family for two consecutive years or more. That absence has contributed to making the relationship between husband and wife more complicated and serious. The marriage relationship at that time only existed in a formality. This legal provision is similar to the case of "abandoning the wife" in the old feudal law, and at that time, the wife has the right to sue for divorce.

The declaration of a missing person is of utmost importance. It contributes to protecting the interests of the individual as well as related entities. The regulation of the grounds for divorce comes from protecting the interests of the husband and wife, in order to ensure both the interests of the person with rights and related interests. At the same time, it is completely correct, consistent with the objective reality, and resolves many problems in marriage. The Court's decision to declare a missing person to a wife or husband does not automatically terminate the marriage relationship, although it is

determined as a ground for divorce. Only when there is a request for divorce from the party concerned will the Court grant the divorce. If the party concerned does not request a divorce, the marriage relationship will naturally still exist.

In short, in the case of divorce due to someone being declared missing, the decision declaring missing is the basis for divorce, the judge does not need to verify that the couple's common life cannot be prolonged, the purpose of marriage cannot be achieved. We say that the decision to grant divorce in this case is natural. When the husband is declared missing by the Court and the wife requests a divorce, the Court will grant the divorce. This is to ensure the wife's personal rights such as participating in a new marriage relationship... or also to ensure the management of the husband's assets to ensure family life and economic development.

Thus, the request for divorce at the request of one spouse has been expanded by the 2014 Law on Marriage and Family, on which the wife's rights are also better guaranteed. When the wife or husband exercises the right to request a divorce, the wife's right to be a mother is still guaranteed through the provisions of the law. According to the regulations, the mother is still guaranteed by law the right to look after, care for and educate her child. In some cases, the law also guarantees the wife the priority right to custody of the child when the child is under 36 months old.

2.3 Grounds for divorce in case of divorce at the request of father, mother or other relatives

Clause 2, Article 51 of the 2014 Law on Marriage and Family stipulates as follows: 2. Fathers, mothers, and other relatives have the right to request the court to resolve a divorce when one spouse, due to mental illness or other illness, cannot perceive or control his or her behavior, and is also a victim.

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