I am a Turkish citizen and my ex-wife is a South Korean citizen. We got married in South Korea in 2020 and are currently residing in Vietnam as foreign nationals holding temporary residence cards. Due to irreconcilable marital conflicts, we have decided to divorce. May we proceed with our divorce in Vietnam?
Response:
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Mutual legal assistance treaties between Vietnam and Turkey and Korea
As of now, Vietnam and South Korea have only entered into a Mutual Legal Assistance Treaty in criminal matters, but not in civil matters, which would cover issues such as divorce. Therefore, there is currently no bilateral legal framework between the two countries regulating divorce proceedings in this context.
Additionally, Vietnam and Turkey have not signed any Mutual Legal Assistance Treaty in civil matters either.
This means that there is no existing bilateral agreement between Vietnam and the aforementioned countries regarding the recognition or legal support for divorce. Accordingly, in the absence of such treaties, Vietnamese law shall apply if the divorce is requested and initiated in Vietnam, subject to meeting specific legal conditions under Vietnamese law.
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Jurisdiction of Vietnamese courts in divorce cases involving foreign elements
According to Clause 25, Article 3 of the 2014 Law on Marriage and Family, a marriage or family relationship involving a foreign element is defined as:
"A marriage and family relationship involving a foreign element is one in which at least one party is a foreigner."
In your case, the marriage is between two foreign nationals, and thus is considered a relationship involving foreign elements.
Regarding jurisdiction, Clause 1, Article 127 of the 2014 Law on Marriage and Family provides:
“Divorce between a Vietnamese citizen and a foreigner, or between two foreigners who permanently reside in Vietnam, shall be settled by the competent Vietnamese authority in accordance with this Law.”
This means that for a Vietnamese court to have jurisdiction over a divorce between two foreign nationals, both parties must be permanent residents of Vietnam.
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Clarification of the Concept of "Residence" under Vietnamese Law
According to Clause 2, Article 2 of the 2020 Law on Residence, residence is defined as:
“Residence means a citizen’s living at a location within the administrative boundaries of a commune-level administrative unit or a district-level administrative unit where no commune-level administrative unit exists.”
Furthermore, Clauses 8 and 9 of this Article define:
Permanent residence: “A place where a citizen lives permanently, stably, and has registered permanent residence”;
Temporary residence: “A place where a citizen lives for a certain period of time outside of their permanent residence and has registered temporary residence.”
Therefore, holding a temporary residence card as a foreign national in Vietnam does not qualify as permanent residence under Vietnamese law.
Conclusion:
As both parties are foreign nationals temporarily residing in Vietnam, and there are no Mutual Legal Assistance Treaties in civil matters between Vietnam and either Turkey or South Korea, Vietnamese courts do not have jurisdiction to settle your divorce in this case.
You may consider initiating divorce proceedings in the country where your marriage was registered (i.e., South Korea); or the country of each party’s nationality (i.e., Turkey or South Korea).
The appropriate jurisdiction will depend on various factors such as your current place of residence, each country's legal provisions on court jurisdiction, and applicable divorce laws.
