Can I divorce a missing person or not?

Lawyer Nguyen Thi Thuy, YouMe Law Firm LLC, replied:

Clause 2, Article 56 of the 2014 Law on Marriage and Family stipulates divorce upon request of one party as follows:

1. When the spouse asks for a divorce and the mediation in the court fails, the Court resolves the divorce if there is a basis for the husband and wife to commit domestic violence or seriously violate the rights and obligations of the husband and wife to make the marriage seriously, the common life cannot last, the purpose of the marriage is not achieved.

2. In case the husband or wife of the person declared missing or declared missing by the Court requests a divorce, the Court shall resolve the divorce.

3. In case there is a request for divorce as prescribed in Clause 2, Article 51 of this Law, the Court shall resolve the divorce if there is a basis for the husband or wife to commit acts of domestic violence that seriously affect the life, health and spirit of the other person.

Clause 1 and Clause 2, Article 68 of the 2015 Civil Code stipulate the declaration of missing as follows:

1. When a person has been missing for 02 years or more, although all measures of notification and search have been applied according to the provisions of the law on civil proceedings, but there is still no authentic information about whether that person is alive or dead, then at the request of the person with related rights and interests, the Court can declare that person missing.

The 2 -year term is calculated from the date of knowing the final news about that person; If the date of the last news is not determined, this deadline is calculated from the first day of the next month with the last news; If the date and month is not determined, this term is calculated from the first day of the next year with the last news.

2. In case the husband or wife of the person declared missing applies for divorce, the Court shall resolve the divorce in accordance with the provisions of the law on marriage and family.

Thus, in case the husband or wife of the person declared missing requests a divorce, the Court shall resolve the divorce. The declaration of a person as missing must be carried out according to the procedure for declaring a missing person at the competent Court as prescribed above.