The law stipulates that parties involved in "divorce" cannot authorize another person to act on their behalf, but there are many different interpretations of what "divorce" actually means.
When divorcing, can a party authorize someone else to represent them in the appellate court if the only dispute between the two parties is the division of joint property? The law is unclear, causing confusion in the court, and experts have differing opinions... In 1995, Mr. NCH registered his marriage with Ms. HCU. Later, conflicts arose between the couple. The conflict reached its peak in 2004 when Mr. H. claimed that their second child was not his. Unable to reconcile, in April 2008, Ms. U. filed a petition with the People's Court of a district in Dong Nai province to request the court to grant her divorce from Mr. H.
Authorization regarding property
When Ms. U. discussed this intention to authorize someone else, the judge handling the case was also hesitant, unsure whether to approve it or not, because this was a new situation in the practice of adjudicating marriage and family cases. In principle, divorce is a personal right, and the parties cannot authorize someone else to represent them but must directly participate in the proceedings. However, in this case, the parties are no longer disputing the divorce or child custody, but only the property.
Does the law allow it?
We presented the above situation to several legal experts and received two different viewpoints.
According to lawyer Dung, the law stipulates it this way and must be complied with. However, in the long run, the law should be amended to create conditions for parties to be more flexible in protecting their rights when disputing common property. Because, ultimately, the request to divide common property in a divorce case has nothing to do with personal rights, so authorization will not affect the trial.
Commissionable rights
In a divorce case, only the request for divorce is a mandatory requirement that the court must consider and resolve, either granting or rejecting it. Other issues such as child custody and alimony, division of joint property, if the couple can reach an agreement themselves, the court will not consider or resolve them.
Thus, the law only prohibits authorization in matters of Divorce is not prohibited, but authorization in other matters is. In fact, if the parties do not mention the division of common property in the divorce case, and later file a separate lawsuit to have the court resolve the matter, one of the parties can still authorize another person to act as their representative. Arial;">Dr. NGUYEN VAN TIEN, lecturer at Ho Chi Minh City University of Law Authorized on assets Since Mr. H. is only appealing the division of common property, the court will base its decision on the provisions of the Civil Code. The law only prohibits authorization in cases of disputes concerning personal relationships, but it does not prohibit authorization in disputes over property. Therefore, Ms. U. can absolutely authorize someone else to represent her.Participate in resolving disputes regarding division of common property. Ho Chi Minh City Bar Association Need specific instructions
I think the competent authorities need to review and adjust this regulation or issue a guiding document. specifically so that the application of the law is consistent.
A prosecutor of Binh Thanh district (HCMC)