Date: 01 December 2021
Through this article, BLawyers Vietnam would like to introduce to you a list of 27 FQAs property regimes before marriage and division of property upon divorce.
1. When is a marriage officially recognized and protected by Vietnamese laws?
By law, a marriage relationship is officially acknowledged in case of meeting the following conditions:
- Men and women (opposite sex) of sufficient age to marry as prescribed: Male from full 20 years of age or older and female from full 18 years of age or older;
- Men and women marry voluntarily and do not lose their civil act capacity (persons who are incompetent in civil acts are persons who are mentally ill or otherwise ill without being able to perceive, master the act and are declared by the Court to be incompetent to civil acts);
- Not falling into the cases prohibited for marriage as prescribed by the laws; and
- Marriage must be registered at the competent authority.
2. How is the common property of the spouse regulated by Vietnamese laws?
Spouses’ common properties during the marriage period include:
- Property created by a spouse, incomes generated from labor, production, and business activities;
- Yields and profits arising from separate property. Except for the yields and profits are divided as the private property of a spouse;
- Other lawful incomes during the marriage period;
- Property that spouses are inherited together or given; or
- Other property that the spouses agree on as the common property.
3. How is the private property of spouses regulated by Vietnamese laws?
Spouses’ private properties include:
(i) Property owned by each spouse before the marriage;
(ii) Property inherited by or given separately to a spouse during the marriage period;
(iii) Property divided to a spouse as prescribed by the laws;
(iv) Property to serve a spouse’s essential needs and other property under a spouse’s ownership as prescribed by the laws;
(v) Property created from the private property of a spouse; or
(vi) Yields and profits arising from the private property during the marriage period after dividing common property.
4. The property created before the marriage is the common property or private property of the spouse?
The property created before marriage is the private property of a spouse.
In case the husband and wife agree to enter such property into the spouses’ common property in accordance with the laws or there are no grounds to prove that such property was created before the marriage, shall be the common property of the spouses.
5. How is the registration of the ownership of common property of spouses prescribed by the Vietnamese laws?
The spouses’ common property prescribed by the laws must be registered the ownership, the right to use includes the movable properties compulsorily registered and real estate under the prevailing Civil Code.
After registering ownership and rights to use, the spouses will be granted a certificate of ownership, a certificate of rights to use with the names of both spouses, unless the spouses agree to name one of them.
6. How is the spouse’s obligation of property prescribed by the Vietnamese laws?
Spouses have the following obligations for common property:
(i) Obligations arising from transactions established under their agreement, obligations to pay damages under their joint liability as prescribed by the laws;
(ii) Obligations performed by a spouse in order to serve the family’s essential needs;
(iii) Obligations arising from the possession, use, and disposition of common property;
(iv) Obligations arising from the use of the private property for maintaining and developing common property or for generating major incomes for the family;
(v) Obligations to pay damage caused by their children as prescribed by the prevailing Civil Code; or
(vi) Other obligations as prescribed by the laws.
Spouses have the following obligations for private property:
(i) Obligations that a spouse had before marriage;
(ii) Obligations arising from the possession, use, and disposition of a spouse’s private property, except for using private property to maintain or develop the common property or to create the main income of the family as well as yields or profits arising from private property which is the only source of life of the family;
(iii) Obligations arising from transactions established and made by a spouse not for serving the family’s needs; or
(iv) Obligations arising from a spouse’s illegal acts.
7. How are a foreign spouse’s rights toward the common property and private property in Vietnam prescribed?
A foreign spouse has the possession, use, and disposition rights of private or common properties of the spouse under the laws. However, foreigners shall be restricted to own toward the following properties:
- Land use rights and properties attached to land;
- Houses outside investment projects to build commercial houses and in areas of national defense and security assurance or exceeding the number of houses allowed for foreign purchase in accordance with the Vietnamese laws;
For the movable property that must be not registered ownership, the foreigner can own legally by a civil transaction. For the movable property is compulsory to register ownership shall comply with the relevant regulations of the laws.
Read more Can a notarized land transfer contract (made by a husband or a wife) be canceled?
8. Can a foreign spouse receive a common property during the marriage?
Yes, he/ she can. Foreign spouses can receive property from others given to both spouses during the marriage period or receive part of the property of Vietnamese spouses given in the common property but must ensure that the foreigner can own the given property in accordance with the laws.
Of note, the contract on giving real estate between husband and wife must be made in writing and notarized or certified by the competent authority.
9. How is the combination of the private property of spouses into common property prescribed?
The merger of private property into common property consists of the following steps:
- Step 1: The spouse must have an agreement to merge the private property into the common property. Such agreement must comply with regulations on the form (e.g., agreements relating to real estate must be made in notarized and certified writing);
- Step 2: Performing the administrative procedures such as updating the name of both spouses for real estate or movable property that requires registering the ownership.
Obligations related to separate property already merged into common property shall be performed with the common property unless otherwise agreed.
10. Can the spouse reach an agreement to divide their common property during the marriage?
Yes, they can. During the marriage period, the spouse can agree on the division of a part of the whole common property except for:
- Cases where it seriously harms the family’s interests; or lawful rights and interests of minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves; or
- Avoiding fulfilling statutory obligations.
Therefore, spouses can make an agreement on the division of the common property during the marriage period and must notarize this agreement by laws.
11. How is the content and form of the agreement on the division of the spouse’s property prescribed?
Regarding the content, the agreement on the division of common property of spouses includes the following main contents:
- Property determined as common property and private property of a spouse;
- Rights and obligations of spouses toward common property, private property, and related transactions;
- Conditions, procedures and principles of property division; and
- Other related contents.
Regarding the form, the agreement on the division of common property of spouses must be made in writing and notarized.
12. Is the property created from a private property during the marriage period divided upon divorce?
No, it is not. Properties created by the private property during the marriage period shall be the private property of a spouse and in the ownership of that person unless this property has merged into the spouses’ common property, or the property is yields and profits arising from a private property during the marriage period or the parties have other agreements.
Under the principle of division of property upon divorce, such properties are determined as the private property of the spouse and will not be divided upon divorce.
13. Is the property created from the common property divided upon divorce?
Yes, it is. Property created from a common property is the common property of spouses during the marriage period. Such property will be divided upon divorce by the Court’s decision or by the spouse’s agreement (if any).
In case the spouse agrees to determine that such property as private property, it shall be privately owned by a spouse and not be divided upon divorce.
14. Does a spouse by himself/ herself to sell the common property violate the law?
Yes, he/she does. The sale of common property must be mutually agreed upon by the spouse. However, the spouses may sell the common property by herself/himself if the sale of common property is to serve the family’s essential needs.
Accordingly, the agreement on the sale of the common property of the spouses must be made in writing for the property which is:
- Real estate;
- Movable property which must be legally registered for ownership; or
- Property is the main source of income for the family.
Therefore, the selling of the common property that is not to serve the family’s essential needs must have the consent of both spouses. If one party sells the property on her/ his own, the other party may request the Court to declare the transaction invalid as prescribed.
15. Can the common property be divided automatically for children when the parents get divorced?
No, it cannot. The common property of the spouse shall be divided between the spouses by agreement or by Court’s decision. Thus, the property will be owned by a spouse after the division. In this case, the children do not have the right to own the property of the spouses automatically unless the spouse agrees to divide the property to the children after the divorce.
16. What is the principle that the Court uses to divide a spouse’s property after divorce?
The spouse may request the Court to divide the property upon divorce if they fail to reach an agreement. Accordingly, the Court shall decide on the division of spouses’ properties based on the following principles:
- For property agreed in writing by the spouses: The court applies the contents of the written agreement to divide the property of the spouses upon divorce.
- For property without written agreements, unclear agreements, or invalid agreement documents:
The Court applies the principles of division of common property considering factors including:
(i) Circumstances of the family, husband, and wife;
(ii) Each spouse’s contributions to the creation, maintenance, and development of the common property. The housework performed in the family by a spouse shall be regarded as income-generating labor;
(iii) Protecting the legitimate interests of each spouse in their production, business, and career activities to create conditions for them to continue working to generate incomes; and
(iv) Each spouse’s faults in the infringement of spousal rights and obligations.
- The common property of husband and wife shall be divided in kind or its value. The party who receives the property in kind with a value bigger than the portion he/she is entitled to receive shall pay the value difference to the other.
- A spouse’s private property is owned by such a spouse.
17. May the spouse get a divorce when having not settled the division of property yet?
Yes, it may, depending on the Court’s consideration. The spouse may agree to divide the property on their own or request the Court to divide the property by agreement or request at the divorce petition. In cases spouses have not divided the common property, both spouses still have joint ownership of the common property until having an agreement of division.
Thus, the spouse can still comply with the property division agreement before or after the divorce. Dividing a spouse’s property is not a mandatory condition for the Court to settle the divorce relation.
18. What circumstances is the division of common property during the marriage invalidated?
Common property division during the marriage period shall be invalidated when:
(i) It seriously harms the family’s interests; or lawful rights and interests of minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves; or
(ii) It aims to avoid the following obligations:
- Raising and supporting;
- Payment for damage;
- Payment when declared bankrupt by a Court;
- Debt payment;
- The financial obligations toward the State; or
- Other property obligations as prescribed.
19. Does the agreement to divide property when mutual divorce incur Court’s fee?
It is depending on the specific situation. According to Article 27.5.d of Resolution No. 326/2016/UBTVQH14, in case the involved parties agreed on the division of the husband and wife’s common property and request the Court to record it in the judgment or decision before the Court conducts the conciliation, the involved parties will not have to bear the first-instance civil court fees for the division of common property of the husband and wife.
20. How to resolve the discovery of secret property after divorce?
Article 33.1 of the Law of marriage and family (“LOMF 2014”) regulated that common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property, and other lawful incomes in the marriage period. Therefore, when detecting the secret property after divorce and determining that this property was formed during the marriage period, there is the legal ground to consider this property as the common property of husband and wife.
Under Article 59.1 of LOMF 2014, the settlement of property after divorce shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach an agreement thereon, at the request of a spouse or both, a Court shall settle it according to the laws.
Accordingly, in this case, after divorce, husband and wife can agree on the division of common property. If two parties cannot reach an agreement or the agreement is incomplete, they can request the Court to resolve the division of common property after the divorce.
21. How to resolve the property of the husband and wife who illegally married?
According to Article 12.3 and Article 16 of LOMF 2014, property relations between the parties illegally getting married shall be settled as follows:
- Property relations shall be settled under the partners’ agreement. In case there is no agreement, they shall be settled in accordance with the Civil Code and other relevant laws; and
- Settlement of property relations must ensure lawful rights and interests of women and children; housework and other related work to maintain the cohabitation shall be regarded as income-generating labor.
22. Can spouses’ common property related to the third party be divided upon divorce?
Yes, it can. Property rights and obligations of husband and wife related to a third party is prescribed by the laws as follows:
- Article 39.4 of LOMF 2014 regulated property rights and obligations between husband and wife and a third party which arise before the effective time of common property division remain legally effective, unless otherwise agreed by involved parties;
- Article 40.2 of LOMF 2014 regulated that the agreement on property division between husband and wife shall not change property rights and obligations previously established between them and a third party; and
- Property rights and obligations of husband and wife toward a third party remain effective after divorce, unless otherwise agreed by husband and wife and that party.
Therefore, the parties can agree on the division of property related to the third party after the divorce, but the rights and obligations of the husband and wife towards the third party do not change after the division of the property.
23. Does a foreign spouse have ownership rights to common property that is real estate in Vietnam?
According to Article 5 of Law on Land 2013, foreign individuals are not subject to be allocated land or leased land, have land use rights recognized by the State, or acquire land use rights.
Pursuant to Article 159.2.b of Law on Housing 2014, a foreigner can buy, rent and purchase, receive, or inherit houses including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.
Therefore, for the real estate in Vietnam, a foreign spouse does not have ownership rights to the common property which is the land or land use rights. However, they have ownership rights to the common property which is commercial housing if such person meets regulations of the laws.
24. How is the abroad common property which is real estate divided upon divorce?
According to Article 127.3 of LOMF 2014, the division of property being abroad real estate upon divorce will be settled according to the laws of the country where the real estate is located.
25. Is the property which was the land use right purchased by a foreign spouse during the marriage period but named the third party divided upon divorce?
Yes, it is. According to Article 33.1 of LOMF 2014, the land use rights obtained by a spouse after marriage shall be the common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.
Therefore, if there are grounds to determine that the property which is the land use right is purchased by a foreign spouse during the marriage period, not through transactions made with separate property of such person and parties requested a third party to help register his/her name over such property, it is determined as common property and is divided upon divorce.
26. Is the real estate that was purchased by the spouse during the marriage period but not yet named their name divided upon divorce?
According to Article 503 of Civil Code 2015, the transfer of land use rights shall be effective from the date of registration under laws on land. Article 188.3 of Law on Land 2013 regulated that the exchange, transfer, lease, sublease, inheritance, donation, or mortgage of land use rights or contribution of land use rights as capital must be registered with the land registration agency and will take effect from the time of registration in the cadastral book.
Therefore, it can be understood that the land use right was purchased by husband and wife during the marriage which has not yet been transferred the name, but if it has been registered in the cadastral book, the transfer of this land use right has been effective and belongs to the ownership of the husband and wife. Pursuant to Article 33.1 of LOMF 2014, the land use right purchased by husband and wife during the marriage period without through transactions made with the separate property, this property is determined to be common property and is divided upon divorce.
27. How to resolve the common property which has been agreed to be divided upon divorce, but there is a dispute after divorce?
The prevailing laws do not clearly stipulate that one party can file a lawsuit for the violation of the property division agreement after divorce. However, Article 29.11 of Code of Civil Procedures 2015 stipulated that marriage and family claims falling under the Court’s jurisdiction include other marriage and family requirements, except for cases within the jurisdiction of other agencies and organizations as prescribed by the laws. Therefore, it can be understood that the lawsuit filed by one party regarding violation of the agreement on the division of property after the divorce belongs to another case resolved by the Court and one party can request the Court to settle when there are grounds to determine that the other party is in breach of this agreement.
Should you have any questions about the above contents, please revert to BLawyers Vietnam at email@example.com. We are more than happy to hear from you!
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