Oral Agreement on Division of Joint Property: Is It Valid? Does an Oral Agreement on Divorce Terminate Marital Status?
What Are the Forms of Divorce According to Current Regulations?
Based on Article 55 of the Law on Marriage and Family 2014 regulations are as follows:
Consensual Divorce
In cases where both husband and wife request a divorce, if it is found that both parties truly voluntarily request a divorce and have agreed on the division of assets, the care, nurturing, and education of children based on ensuring the legitimate interests of the wife and children, the Court will recognize the consensual divorce; if no agreement is reached or the agreement does not ensure the legitimate interests of the wife and children, the Court will resolve the divorce.
Based on Article 56 of the Law on Marriage and Family 2014 regulations are as follows:
Divorce at the Request of One Party
1. When the husband or wife requests a divorce and the reconciliation at the Court fails, the Court shall resolve the divorce if there are grounds for the husband or wife committing acts of domestic violence or seriously violating the rights and obligations of the husband or wife, making the marriage fall into a serious state where the common life cannot be prolonged, and the purpose of marriage is not achieved.
2. In cases where the spouse of a person declared missing by the Court requests a divorce, the Court shall resolve the divorce.
3. In cases where there is a request for divorce as stipulated in Clause 2, Article 51 of this Law, the Court shall resolve the divorce if there are grounds for the husband or wife committing acts of domestic violence seriously affecting the life, health, or spirit of the other party.
Thus, according to current regulations, there are two forms of divorce: consensual divorce and divorce at the request of one party (unilateral divorce).
Is an oral agreement on the division of common property valid? Does an oral agreement for divorce terminate the marriage?
Is an Oral Agreement for Divorce Considered as Having Divorced?
Based on Article 57 of the Law on Marriage and Family 2014 regulations are as follows:
The Time of Termination of Marriage and the Responsibility to Send the Divorce Judgment or Decision
1. The marital relationship ends from the date the Court's divorce judgment or decision takes legal effect.
2. The Court resolving the divorce must send the effective legal judgment or decision on divorce to the authority that registered the marriage to record in the civil status book; to the divorced parties; to individuals, authorities, and organizations as stipulated by the Civil Procedure Code and other relevant laws.
The marital relationship only ends when and only when the Court's divorce judgment or decision takes legal effect.
Therefore, an oral agreement for divorce between husband and wife does not terminate their marital relationship. In this case, the couple can only live separately (separation) but still maintain their marital relationship.
After an Oral Agreement for Divorce, Is the Couple's Property Still Considered Marital Property?
As mentioned above, an oral agreement for divorce does not terminate the marital relationship. Instead, the marital relationship of the couple only ends when the Court's divorce judgment or decision takes effect.
Therefore, if there is no separate agreement, the couple's property is still considered common property during the marital period even after an oral divorce agreement.
Is an Oral Agreement on the Division of Common Property Valid?
Based on Article 38 of the Law on Marriage and Family 2014 regulations are as follows:
Division of Common Property During the Marriage Period
1. During the marriage period, the couple has the right to agree to divide a part or all of the common property, except in cases stipulated in Article 42 of this Law; if no agreement is reached, they have the right to request the Court to resolve.
2. The agreement on the division of common property must be made in writing. This document may be notarized at the request of the couple or as prescribed by law.
3. In cases where the husband or wife requests, the Court resolves the division of the couple's common property according to the provisions of Article 59 of this Law.
As mentioned above, an oral agreement for divorce does not terminate the marital relationship. Therefore, if there is no separate agreement, the couple's property is still considered common property during the marital period.
Thus, the division of common property during divorce must be made in writing and notarized.
In practice, it is also difficult to prove that the parties have orally agreed on the division of common property during the marriage period; if there is a written and notarized agreement, it will be easier to determine.
What Principle Is Applied in Resolving the Couple's Property During Divorce?
Based on Article 59 of the Law on Marriage and Family 2014 regulations are as follows:
Principles of Resolving the Couple's Property During Divorce
1. In cases where the couple's property regime follows the law, the settlement of property shall be agreed upon by the parties; if no agreement is reached, the Court shall resolve upon the request of the husband or wife or both parties according to the provisions of Clauses 2, 3, 4, and 5 of this Article and Articles 60, 61, 62, 63, and 64 of this Law.
In cases where the couple's property regime follows an agreement, the settlement of property upon divorce shall be applied according to such agreement; if the agreement is incomplete or unclear, the corresponding provisions of Clauses 2, 3, 4, and 5 of this Article and Articles 60, 61, 62, 63, and 64 of this Law shall apply.
2. The couple's common property shall be divided equally but taking into account the following factors:
a) The circumstances of the family and of the husband and wife;
b) The efforts of the husband and wife in creating, maintaining, and developing the common property. The labor of the husband and wife in the family is considered as income-generating labor;
c) The legitimate interests of each party in production, business, and profession so that the parties can continue to work and generate income;
d) The fault of each party in violating the rights and obligations of the husband and wife.
3. The couple's common property shall be divided in kind, if not, in value; the party receiving the property in kind with a higher value than their share must pay the other party the difference.
4. Private property of the husband or wife is under their ownership, except for cases where the private property has been merged into the common property as prescribed by this Law.
In cases where there is a merging or mixing of private property with common property and either party requests the division of property, the party shall be compensated for the value of their contributions to such property, except for agreed-upon cases.
5. Protecting the lawful rights and interests of minor children, children who lost their legal capacity, or children unable to work and lack property to support themselves.
6. The Supreme People’s Court in coordination with the Supreme People’s Procuracy and the Ministry of Justice shall guide this Article.
The division of the couple's property after divorce will be carried out according to the above principles.
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