Can non-divorced spouses have the right to request the court to divide the common property in Vietnam? When is the common property division during the marriage period invalidated?
Can non-divorced spouses have the right to request the court to divide the common property in Vietnam?
In Article 38 of the 2014 Law on Marriage and Family in Vietnam on common property division during the marriage period as follows:
Common property division during the marriage period in Vietnam
1. During the marriage period, except the case prescribed in Article 42 of this Law, husband and wife have the right to reach agreement on division of part or whole of common property. If they fail to reach agreement, they have the right to request a court to settle it.
2. An agreement on common property division shall be made in writing. This agreement shall be notarized at the request of husband and wife or as prescribed by law.
3. At the request of a spouse, a court shall settle the common property division according to Article 59 of this Law.
Article 39 of the 2014 Law on Marriage and Family in Vietnam stipulates the effective time of common property division during the marriage period as follows:
Effective time of common property division during the marriage period in Vietnam
1. The effective time of a common property division shall be agreed by husband and wife and stated in the written agreement. If such time is not stated in the written agreement, it is the date of making the agreement.
2. For divided property whose transactions must be under a certain form as prescribed by law, the common property division takes effect on the time the division agreement complies with the form prescribed by law.
3. For common property divided by a court, the division takes effect on the legally effective date of the court’s judgment or decision.
4. 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.
Thus, during the marriage period (not yet divorced), husband and wife have the right to reach a written agreement on the division of common property, or may ask the court to resolve the division of common property during the marriage period. The effective time of division of common property during the marriage period is according to the agreement of the husband and wife or recorded in a court’s judgment or decision.
Can non-divorced spouses have the right to request the court to divide the common property in Vietnam? When is the common property division during the marriage period invalidated? (Image from the internet)
When is the common property division during the marriage period invalidated?
In Article 42 of the 2014 Law on Marriage and Family in Vietnam on the invalidated common property division during the marriage period as follows:
Invalidated common property division during the marriage period
Common property division during the marriage period shall be invalidated when:
1. 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;
2. It aims to shirk the following obligations:
a/ Raising and support obligations;
b/ Damages payment obligations;
c/ Payment obligations when declared bankrupt by a court;
d/ Debt payment obligations;
dd/ Tax payment obligations or other financial obligations toward the State;
e/ Other property obligations as prescribed by this Law, the Civil Code and other relevant laws.
Thus, the division of common property during the marriage period is invalidated when affecting the family or family members and in order to shirk a number of obligations as prescribed.
When to terminate the effect of common property division during the marriage period in Vietnam?
Article 41 of the 2014 Law on Marriage and Family in Vietnam provides for the termination of effect of common property division during the marriage period as follows:
Termination of effect of common property division during the marriage period
1. After common property is divided during the marriage period, husband and wife have the right to agree to terminate the effect of such division. The form of agreement must comply with Clause 2, Article 38 of this Law.
2. From the effective date of the agreement between husband and wife prescribed in Clause 1 of this Article, the determination of common property and separate property of husband and wife must comply with Articles 33 and 43 of this Law. Unless otherwise agreed by husband and wife, the property portion divided to the husband or wife remains his/her separate property.
3. Unless otherwise agreed by the parties, property rights and obligations arising before the termination of the effect of common property division remain effective.
4. In case common property is divided during the marriage period under an effective court judgment or decision, the agreement on termination of the effect of common property division shall be recognized by the court.
Thus, the termination of effect of common property division during the marriage period will depend on the agreement between the husband and wife.
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