Wanting a divorce while your spouse is abroad and cannot return, or has been out of contact for years — what can you do? The law provides for two different scenarios with different procedures: a spouse abroad (still contactable) and a missing spouse.
This article guides you through the divorce procedure for each case, focusing on the declaration-of-missing-person procedure under Article 68 of the 2015 Civil Code.
1. Scenario 1: spouse abroad but still contactable
This is handled as an ordinary unilateral divorce with foreign elements. The spouse in Vietnam files at the competent People’s Court; the court summons the defendant under civil procedure — if the defendant is abroad and cannot return, the court may try the case in their absence once they have been lawfully summoned (public posting, judicial entrustment where needed).
The key point: as long as the defendant’s residence is identified and service procedures are properly followed, the divorce can proceed without the defendant being present.
2. Scenario 2: missing spouse — a two-stage process
Where a spouse has disappeared and cannot be contacted, the law requires stage 1: petition the court to declare the person missing before stage 2: divorce.
Stage 1 — Declaration of missing person
Article 68 of the 2015 Civil Code (No. 91/2015/QH13) provides: where a person has been missing for 02 consecutive years or more and, despite all notification and search measures under civil procedure law, there is still no verified news of whether the person is alive or dead, the court may declare the person missing at the request of a person with related rights and interests.
The 02-year period runs from the date of the last news about the person. The file needs evidence of search efforts: witness statements, police confirmation records, missing-person notices in the press, etc.
Stage 2 — Divorce from a declared missing person
Clause 2 of Article 68 of the 2015 Civil Code and Clause 2 of Article 56 of the Law on Marriage and Family 2014 provide: where the spouse of a court-declared missing person requests a divorce, the court shall grant the divorce.
The divorce dossier includes: unilateral divorce petition, original marriage certificate, the court’s missing-person declaration, identity documents, children’s birth certificates, property documents (if any). The case is filed at the district People’s Court of the defendant’s last residence. Because the defendant is absent, the court cannot mediate and proceeds to trial.
3. Distinguishing “missing” from “declared dead”
These are two different institutions — do not confuse them:
- Declaration of missing person (Article 68): applies where it is unclear whether the person is alive or dead — effects include management of the missing person’s property, and it grounds the spouse’s divorce petition;
- Declaration of death (Article 71): applies in cases prescribed by law (e.g. missing for 05 years) — effects include automatic termination of the marriage and estate division.
4. Frequently asked questions
Q: My husband has been missing for 1 year — can I petition for a missing declaration?
A: Not yet. The law requires a disappearance of at least 02 consecutive years.
Q: After divorcing a missing person, what if they return?
A: The effective divorce judgment stands. The returned person may petition the court to annul the missing declaration and resolve property matters as prescribed.
Q: How are children and property handled in a missing-person divorce?
A: The court decides as in an ordinary unilateral divorce: custody to the better-placed parent, property divided under the principles of Article 59 of the Law on Marriage and Family 2014.
Facing divorce procedures involving a missing spouse or one abroad? Contact us for advice.
This article was prepared by the FLAW AI Legal Council. Content is pending QA Council review before submission for approval; information is for reference only and does not replace legal advice for your specific case.