Unilateral divorce refers to cases where one spouse requests a divorce or where both spouses agree to divorce but still have disputes over assets or child custody. Unlike a consensual divorce, unilateral divorce is often more complex due to these disputes. At NPLaw, we have years of experience in providing professional legal consultation for unilateral divorces. The below article provides guidance and clarifications on several main legal aspects of unilateral divorce.
1. Can one spouse file for unilateral divorce if the other refuses?
According to Article 56 of the Law on Marriage and Family 2014:
- Divorce at the request of one spouse, as follows:
- When one spouse requests a divorce and reconciliation efforts at Court fail, the Court shall declare the divorce if there is evidence of domestic violence or serious violations of the rights and obligations of spouses that render the marriage irretrievably broken, the common life intolerable, and the purpose of the marriage unachievable.
- When the spouse of a person who has been declared missing by the Court requests a divorce, the Court shall grant the divorce.
- In cases specified under Clause 2, Article 51 of this Law, the Court shall grant the divorce if there is evidence of domestic violence seriously harming the life, health, or mental well-being of the spouse.
From this provision, a spouse may unilaterally request divorce under these conditions:
- Evidence of domestic violence;
- Serious violations of spousal rights and obligations causing the marriage to deteriorate;
- One spouse has been declared missing by the Court;
- A spouse suffers from a mental disorder or other illness and is also a victim of domestic violence by the other spouse.
Thus, if one spouse refuses to consent to a divorce but the other can prove that one of these legal grounds exists, the Court may still grant the unilateral divorce.
2. Can a wife file for unilateral divorce if the husband commits adultery while she is pregnant?
Fidelity is fundamental in a marriage. When a spouse commits adultery, it can irreparably damage trust and lead to serious marital conflicts. Under the Law on Marriage and Family 2014, a wife has the right to unilaterally request a divorce if her husband commits adultery.
In addition, under Clause 3, Article 51: A husband has no right to request a divorce if the wife is pregnant, giving birth, or nursing a child under 12 months old.
This provision only restricts the husband’s right to request a divorce, not the wife’s. However, a wife may file for unilateral divorce if her husband commits adultery regardless of her pregnancy status.
3. Can a husband file for unilateral divorce while the wife is pregnant?
As noted above, Clause 3, Article 51 of the Law on Marriage and Family 2014 explicitly prohibits a husband from requesting a divorce while his wife is:
- Pregnant;
- Giving birth; or
- Nursing a child under 12 months old.
This restriction aims to protect the rights and emotional well-being of the wife during pregnancy and postpartum, minimizing potential psychological and physical harm.
4. Can a wife file for unilateral divorce if subjected to verbal abuse or physical violence during pregnancy?
Under Article 56 of the Law on Marriage and Family 2014, the Court shall grant a unilateral divorce if:
- Reconciliation at Court fails; and
- There is evidence of domestic violence or serious violations of spousal obligations that render the marriage irretrievably broken.
Additionally, the Law on Domestic Violence Prevention and Control 2007, Article 2 identifies the following acts as domestic violence:
- Physical abuse, mistreatment, or intentional harm to health or life;
- Verbal abuse, humiliation, or other acts that degrade honor or dignity;
- Isolation, expulsion, or psychological pressure causing serious consequences;
- Prevention from family rights and obligations;
- Forced sexual relations;
- Forced marriage or divorce.
Thus, if the husband engages in verbal abuse, humiliation, or physical violence, such conduct constitutes domestic violence, and the wife has legal grounds to request a unilateral divorce.
5. Does a wife need her husband’s signature to file for unilateral divorce?
Under Clause 1, Article 51: Either the husband, wife, or both have the right to request the Court to settle the divorce.
In addition, according to Article 56 of the Law on Marriage and Family 2014, divorce at the request of one spouse, as follows:
- When one spouse requests a divorce and reconciliation efforts at Court fail, the Court shall declare the divorce if there is evidence of domestic violence or serious violations of the rights and obligations of spouses that render the marriage irretrievably broken, the common life intolerable, and the purpose of the marriage unachievable.
- When the spouse of a person who has been declared missing by the Court requests a divorce, the Court shall grant the divorce.
- In cases specified under Clause 2, Article 51 of this Law, the Court shall grant the divorce if there is evidence of domestic violence seriously harming the life, health, or mental well-being of the spouse.
This means a wife does not need her husband’s consent or signature to file for unilateral divorce.
The Court will summon both parties for a reconciliation session. If reconciliation fails, the case proceeds to trial. However, the requesting spouse must present evidence of domestic violence or other serious violations of marital duties to justify the claim.
6. Can a spouse obtain child custody in a unilateral divorce?
Under Article 81 of the Law on Marriage and Family 2014:
- Both parents maintain rights and duties to care for and raise children after divorce.
- Parents may mutually agree on custody; if no agreement is reached, the Court will decide based on the best interests of the child.
- Children under 36 months are generally placed in the custody of the mother unless she is deemed unfit or there is another agreement in place.
- For children 7 years and older, the Court will also consider the child’s wishes.
Thus, in a unilateral divorce, a spouse can obtain custody if they prove their capability to ensure the child’s physical, emotional, and educational needs in accordance with legal standards.
