Vietnam: How to divide the property of husband and wife upon divorce? What are the principles of settlement of common property?
How to establish the agreement on the matrimonial property regime in Vietnam?
Pursuant to Article 47 of the 2014 Law on Marriage and Family in Vietnam on the agreement on establishment of the matrimonial property regime as follows:
For a married couple that selects the agreed property regime, this agreement shall be made in writing before their marriage and be notarized or certified. The agreed matrimonial property regime shall be established on the date of marriage registration.
Pursuant to Article 48 of the 2014 Law on Marriage and Family in Vietnam stipulating the basic contents of an agreement on the matrimonial property regime, specifically:
The basic contents of an agreement on the matrimonial property regime in Vietnam include:
- Property determined as common property and separate property of the husband and wife;
- Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;
- Conditions, procedures and principles of property division upon termination of the property regime;
- Other related contents.
For matters arising in the implementation of the agreed property regime which have not been agreed or unclearly agreed by husband and wife, Articles 29, 30, 31 and 32 of this Law and corresponding provisions of the statutory property regime shall apply.
Vietnam: How to divide the property of husband and wife upon divorce? What are the principles of settlement of common property?
What are the principles of settlement of property of husband and wife upon divorce?
Principles of settlement of property of husband and wife upon divorce are specified in Article 59 of the 2014 Law on Marriage and Family in Vietnam as follows:
- The settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
- In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. In case the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
- Common property shall be divided into two, taking into account the following factors:
+ Circumstances of the family, husband and wife;
+ Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;
+ 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;
+ Each spouse’s faults in the infringement of spousal rights and obligations.
- Common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner 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.
- Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property in accordance with this Law.
A spouse who requests division of separate property which has been merged into or mixed with common property shall be paid for the value of his/her property contributed to common property, unless otherwise agreed by husband and wife.
- The lawful rights and interests of the wife, minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves shall be protected.
- The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding this Article.
How to divide the property of husband and wife upon divorce?
Pursuant to Article 33 of the 2014 Law on Marriage and Family in Vietnam stipulating the common property of husband and wife as follows:
- 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; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.
The land use rights obtained by a spouse after marriage shall be 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.
- Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.
- When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.
Pursuant to Article 43 of the 2014 Law on Marriage and Family in Vietnam stipulating the separate property of husband and wife, specifically:
- Separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her under Articles 38, 39 and 40 of this Law; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.
- Property created from separate property of a husband or wife is also property of his/her own. Yields and profits arising from separate property during the marriage period must comply with Clause 1, Article 33, and Clause 1, Article 40, of this Law.
Thus, the common property of the husband and wife will be divided in half and the separate property of the individual will belong to that person's ownership.
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