Cross-Border Divorce Case Commentary: Applicable Law and Child Custody

Case overview

This matter was tried at first instance by the People's Court of Ho Chi Minh City in 2023 and on appeal by the High People's Court of HCMC in 2024. It is an emblematic cross-border divorce — a category of dispute increasingly common in Vietnam as international marriage rates rise.

Three core legal issues are presented:

  1. Which law governs the marital relationship?
  2. Do Vietnamese courts have jurisdiction?
  3. On what basis is custody determined when the parents reside in two countries?

For confidentiality, the parties are anonymised as Mrs A (Vietnamese national) and Mr B (US national).

Facts

  • Mrs A and Mr B were married in the United States in 2015 and registered the marriage in California
  • Their child C was born in the US in 2017 (US citizen)
  • In 2020 the family relocated to Vietnam and re-registered the marriage with the HCMC Department of Justice
  • In 2022, Mrs A filed for divorce in the HCMC People's Court and sought custody of C
  • Mr B counterclaimed for application of California law (lex loci celebrationis) and a return order for C to the US

Issue 1: Applicable law

The governing provisions

Article 122 of the Marriage and Family Law 2014 provides:

"Marriage, divorce, personal and property relations and obligations between spouses... involving foreign elements shall be settled under the law of Vietnam, unless this Law provides otherwise."

Article 127 further specifies: "A divorce between a Vietnamese citizen and a foreigner... that is settled in Vietnam shall be governed by Vietnamese marriage and family law."

The court's reasoning

Both instances held that Vietnamese law applied because:

  • One party is a Vietnamese citizen
  • Both parties were residing in Vietnam at the time of suit
  • The marriage had been re-registered with a Vietnamese authority

Mr B's argument for California law failed. The appellate court noted that the parties' choice to reside in Vietnam and re-register their marriage was a legal act manifesting their intent to be governed by Vietnamese law.

Commentary

The outcome is consistent with the lex fori principle applied uniformly in cross-border divorces in Vietnam. The appellate court did not, however, clarify the possibility of dépeçage — applying Vietnamese procedural law while consulting California law on, for instance, the division of community property accumulated before relocation. That is an open question that counsel can deploy in similar cases — particularly where substantial marital assets were generated abroad.

Issue 2: Jurisdiction

Territorial jurisdiction

Article 469 of the Civil Procedure Code 2015 lists the cases over which Vietnamese courts have general jurisdiction. Here:

  • The defendant (Mr B) was resident in Vietnam → Vietnamese jurisdiction (Article 469(1)(a))
  • The subject of dispute (child C) was located in Vietnam → supplemental basis

Tier of jurisdiction

Because the case involved foreign elements, Article 37 CPC 2015 required the provincial-level court (HCMC People's Court) to hear the case at first instance — not the district-level court that handles routine divorces.

Counsel must carefully observe this point: filing at the wrong tier delays the case 1–3 months while the file is transferred.

Issue 3: Custody

The legal test

Article 81 of the Marriage and Family Law 2014:

"The spouses shall agree on the parent who will directly raise the child... If they cannot agree, the court shall award custody to one party based on the child's interests in all respects."

Vietnamese law construes "interests in all respects" to include material, emotional, educational, environmental, and psychological-stability factors.

The court's reasoning

The trial court awarded custody to Mrs A on these grounds:

  1. Psychological stability: C had been settled in Vietnam for three years and had local social ties
  2. Education: C attended an international school in HCMC with bilingual programming
  3. Continuity of care: Mrs A had been C's primary caregiver since birth
  4. Economic capacity: both parties qualified, so this was not dispositive

The appellate court affirmed but added one important refinement: it expressly defined visitation rights and a right to take C to visit Mr B's family in the US, ensuring continued connection to both cultures.

Commentary

This is a careful and balanced decision, reflecting the modern direction of Vietnamese courts: no longer reflexively favouring maternal custody but evaluating the child's best interests holistically.

Notably, the court proactively considered the cultural factor — the child's right to maintain ties with the paternal family in the US. The approach approximates that of the Hague Convention on the Civil Aspects of International Child Abduction (1980) even though Vietnam is not yet a full party.

Practical lessons for counsel

When advising the Vietnamese-national plaintiff

  1. Fortify factual residency in Vietnam (temporary residence registration, lease records, school enrolment for the child)
  2. Document the caregiving record from birth — photos, health-record book, expense receipts, school correspondence
  3. Prepare environmental evidence of stable living conditions: home, school, family network in Vietnam

When advising the foreign-national defendant

  1. Avoid a forced-return strategy — Vietnamese courts respond poorly to it
  2. Focus on visitation and joint decision-making rights for major issues (education, healthcare, international travel)
  3. Propose a detailed plan for sustaining a transnational parent–child relationship

Conclusion

This case illustrates clearly how Vietnamese courts handle modern cross-border divorces: uniform application of Vietnamese law on jurisdiction and procedure, but flexible and holistic analysis on custody. For practising counsel, understanding the cultural backdrop and modern trajectory of the bench is as important as mastering the statutory text. Apolo Lawyers has handled multiple matters of this kind and observed that evidence of the child's actual living environment — not financial-capacity comparisons between parents — is the most persuasive factor at trial.