Unilateral divorce when the spouse does not agree: What is the procedure?

When a marriage has serious conflicts, one party wants a divorce but the other party does not agree, the termination of the marriage relationship often faces many difficulties. There are cases where the spouse does not sign the application, does not cooperate in the settlement or is deliberately absent when the Court summons. So is it possible to get a unilateral divorce when the spouse does not agree, what documents need to be prepared and what are the procedures?

According to Articles 51 and 56 of the Law on Marriage and Family 2014, the spouse has the right to request the Court to settle the divorce according to regulations. The fact that the other person does not agree does not mean that the requester is definitely not able to divorce. However, in order to be accepted by the Court, the requester needs to meet the legal conditions and provide grounds to prove the marital status as prescribed.

1. If the spouse does not agree, can a unilateral divorce be granted?

The answer is yes, if there is a legal basis for the Court to settle for divorce. According to Clause 1, Article 56 of the 2014 Law on Marriage and Family, when a spouse requests a divorce but the mediation at the Court fails, the Court shall settle the divorce if there are grounds that the other person has committed acts of domestic violence or seriously violates the rights and interests of the other person. obligations of the husband and wife, causing the marriage to fall into a serious condition, the common life cannot be prolonged, and the purpose of marriage cannot be achieved.

Thus, the law does not require both husband and wife to agree to be divorced. If one party resolutely disagrees, the other party can still file a petition to request the Court to settle, but it is necessary to prove that the grounds are in accordance with the law. Simply stating that there is no longer a relationship or not wanting to continue living together may not be enough for the Court to accept if there are no documents and circumstances proving that the marital status has met the statutory conditions.

Grounds may be considered on a case-by-case basis, such as acts of domestic violence, adultery or breach of fidelity, neglect of the family, non-performance of conjugal duties, or protracted conflicts that make it impossible to continue living together. However, each behavior needs to be evaluated in a specific context; not every conflict or violation is automatically settled for divorce.

It should be noted that according to Clause 3, Article 51 of the Law on Marriage and Family 2014, the husband does not have the right to request a divorce when his wife is pregnant, giving birth to a child or raising a child under 12 months old. This restricts the husband's right to request a divorce in legal cases, regardless of whether the wife agrees to the divorce or not.

2. What does a dossier of unilateral divorce when the spouse disagrees?

In order to request the Court to settle the divorce unilaterally, the plaintiff needs to prepare a petition for divorce and documents related to marital relations, common children, common property or property obligations if there is a request for settlement.

Documents commonly required include a marriage certificate; identity papers of the plaintiff; information about the place of residence or work of the other person; birth certificates of common children, if any; and documents related to assets, joint debts and other requests that need to be settled by the Court. If the original of the marriage certificate or necessary papers cannot be kept, the requester should check the possibility of applying for copies, extracts or collecting replacement documents according to applicable regulations.

For the grounds for divorce, the petitioner should provide existing evidence such as messages, emails, documents showing separation, working minutes of competent agencies, documents related to acts of domestic violence or other lawful evidence. The value of each document depends on its content, origin, authenticity, and connection to marital status. Therefore, the preparation of documents needs to focus on the issues that really need to be proved, avoid submitting discrete documents but not clarifying the grounds for requesting a divorce.

If the other person does not cooperate, does not provide documents or holds the marriage certificate, the petitioner should not implicitly assume that he or she cannot carry out the procedure. It is necessary to clearly state the status of the dossier, provide existing documents and request the Court to guide or assist in collecting evidence to the extent permitted by law.

3. Where to file for unilateral divorce?

According to the provisions on civil procedure, the determination of the competent Court should be based on the type of request, the defendant's place of residence or work and the special circumstances of the case. For an ordinary unilateral divorce case, the plaintiff files an application at the regional People's Court with territorial jurisdiction, usually the Court where the person requested for divorce resides or works. The determination of jurisdiction needs to apply current procedural regulations, including changes in the organization and jurisdiction of the Court, effective from July 1, 2025.

If the spouse is residing in another locality, whose current address is unknown, or has gone abroad, determining the Court of Competent Jurisdiction may be more complicated. The petitioner needs to provide information about his or her place of residence, last place of employment or contact address that he or she knows; at the same time, determine whether the case has foreign elements or not to choose the right agency to settle it.

After receiving the application, the Court shall consider the dossier as prescribed. If the dossier satisfies the conditions, the Court shall notify the payment of the court fee advance in case of payment; the plaintiff performs this obligation and returns the receipt to the Court for consideration and acceptance of the case. If the application or dossier does not meet the requirements, the Court may request amendments and supplements as prescribed.

4. If the spouse does not sign the petition or does not come to the Court, can the divorce be settled?

The unilateral divorce requester does not need the consent signature of the other person on the petition. This is a case that one party requests the Court to resolve, which is different from the divorce procedure which requires both parties to voluntarily request and meet the statutory conditions.

During the settlement process, the Court will notify, summon and conduct legal proceedings as prescribed. If the other person does not appear at the Court, the settlement depends on the reason for the absence, the status of service of the summons and the specific procedural conditions. Not every absence leaves the Court suspended or unable to resolve it; if the statutory conditions are met, the case may be tried in the absence of the involved parties.

However, the petitioner still needs to cooperate with the Court, provide accurate information about the address of the other person, and make valid procedural requests. If an incorrect address is deliberately provided or documents are not supplemented as requested, the resolution process may be prolonged or obstacles may arise.

In case the other person leaves the place of residence, whose whereabouts are unknown or have been declared missing by the Court, the solution should be determined according to the specific legal situation. Clause 2, Article 56 of the 2014 Law on Marriage and Family stipulates that in case the spouse of the person declared missing by the Court requests a divorce, the Court shall settle the divorce. Therefore, if the residence of the other person cannot be determined for a long time, it is necessary to evaluate the dossier to choose the appropriate procedure instead of implicitly considering the inability to contact as a sufficient basis for divorce.

5. When divorcing unilaterally, how does the Court settle child custody and property?

The fact that one party does not agree to divorce does not mean that they automatically lose custody of their children or the right to common property. If the husband and wife have a common child and cannot reach an agreement on the person who directly raises the child, the Court shall consider the conditions to ensure the interests of the child in all aspects according to Article 81 of the Law on Marriage and Family 2014. For children aged full 07 years or older, the Court must consider the child's wishes; Children under 36 months of age shall in principle be assigned to their mothers to directly raise, except for cases prescribed by law.

For common property, Article 59 of the Law on Marriage and Family 2014 stipulates that the settlement is first based on the agreement of husband and wife; if no agreement can be reached, the Court shall settle it in accordance with law. The division of property should consider the property regime of the husband and wife, the origin of the property, the contribution, the circumstances of the family and other factors as prescribed by law. The separate property of each party shall be determined and settled according to the corresponding regulations.

Therefore, when filing a unilateral divorce petition, the petitioner should clearly determine whether he is only requesting the termination of the marriage relationship or at the same time requesting the Court to settle child custody, alimony, property division and common financial obligations. The preparation of specific requests and relevant evidence will help the Court have a basis to fully consider the rights and obligations of the parties.

6. The role of lawyers when carrying out unilateral divorce procedures

In unilateral divorce cases, especially when one party does not agree or does not cooperate, it is important to determine the grounds for divorce and prepare the dossier. The lawyer can assist in assessing the marital status, reviewing relevant facts and evidence to determine whether the request is in accordance with Article 56 of the Law on Marriage and Family 2014. Thereby, the requester can clearly understand the issues that need to be proved, avoiding confusion between ordinary conflicts and serious marital status according to the law.

The attorney can also assist with the preparation of petitions, reviewing documents related to marriage, common children, assets and financial obligations; identify competent courts in accordance with current procedural regulations; at the same time, instruct how to handle when there is a lack of papers, no accurate address of the other person or difficulties in collecting evidence. Preparing the right dossier from the beginning helps to limit the risk of having to amend and supplement many times and avoid prolonging the processing time due to preventable shortcomings.

If a husband and wife have a dispute over child custody, alimony, or common property, the lawyer can analyze the legal grounds, evaluate the evidence, and assist in developing an appropriate protection plan. For custody disputes, the preparation of documentation that demonstrates the child's conditions of care, living environment, time spent with the child, and the ability to ensure the child's development can play an important role. For assets, lawyers assist in clarifying the origin, time of formation, grounds for determining common or separate assets and related obligations.

During the proceedings, lawyers can assist the requester in exercising procedural rights and obligations, preparing opinions and documents and participating in the protection of legitimate rights and interests within the scope of the agreed services. In case the other person is deliberately absent, does not cooperate or has foreign elements, the lawyer can analyze the legal obstacles and the handling direction in accordance with the actual dossier. However, having a lawyer does not guarantee that the Court will accept the divorce request; The result still depends on the legal basis, evidence and the process of resolving the case.

Conclusion: When the spouse does not agree to divorce, the other person can still request the Court to settle according to unilateral divorce procedures if the legal conditions are met. It is essential to properly identify the competent Court, prepare complete documents, and prove the grounds for divorce. If there is a dispute over common children, property or the other person does not cooperate, reviewing the dossier and choosing the appropriate solution from the beginning will help limit risks and protect the legitimate rights and interests of the requester.

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(Written by: Doan Ngoc Khanh; Date written: 12/10/2026)

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