Vietnam: In case of property being a house bought during the marriage period, will the property be divided upon divorce?
In case of property being a house bought during the marriage period, will the property be divided upon divorce?
According to Article 33 of the 2014 Law on Marriage and Family in Vietnam on the common property of husband and wife in Vietnam as follows:
Common property of husband and wife in Vietnam
1. 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.
2. 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.
3. 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 Clause 1, Article 33 above, property being a house purchased during the marriage period will be determined to be common property of husband and wife if purchased with money created by husband and wife, unless the house is purchased with the separate property of the spouse.
Therefore, if the house is the common property of the husband and wife, when the husband and wife divorce, the property will be divided.
Separate property of husband and wife determined according to the provisions of Article 43 of the 2014 Law on Marriage and Family in Vietnam, Article 11 of Decree No. 126/2014/ND-CP including:
+ 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 during the marriage period; property to meet his/her essential needs.
+ The economic right to intellectual property objects as prescribed by the law on intellectual property.
+ Property under the separate ownership of a spouse according to the judgment or decision of a court or another competent agency.
+ Allowance or incentives receivable by a spouse as prescribed by the law on preferential treatment toward persons with meritorious services to the revolution;
+ Other property rights associated with the personal identification of a spouse.
Property created from separate property of a husband or wife is also property of his/her own.
Thus, in case the property is determined to be the common property of husband and wife, the transfer of this house is of course related to both husband and wife. On the contrary, if it is determined that this is the private property of the spouse, that person has the full right to decide without the participation of the husband or wife.
Vietnam: In case of property being a house bought during the marriage period, will the property be divided upon divorce?
What are the regulations on division of land use rights of husband and wife upon divorce?
Pursuant to Article 62 of the 2014 Law on Marriage and Family in Vietnam on this content as follows:
Division of land use rights of husband and wife upon divorce
1. Land use rights being separate property of a spouse remain under his/her ownership upon divorce.
2. The division of land use rights being common property of husband and wife upon divorce shall be divided as follows:
a/ For agricultural land under annual crops or aquaculture, if both partners have the need and conditions to directly use the land, the land use rights shall be divided under their agreement. If they fail to reach agreement thereon, they may request a court to settle it according to Article 59 of this Law.
When only one partner has the need and conditions to directly use the land, that partner may continue to use the land but shall pay to the other the portion of the land use right value the latter is entitled to;
b/ When husband and wife share the right to use agricultural land under annual crops or aquaculture with their household, upon divorce, the couple’s portion of the land use right shall be separated and divided under Point a of this Clause;
c/ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use rights shall be divided according to Article 59 of this Law;
d/ The division of the rights to use land of other categories must comply with the land law.
3. For husband and wife living with their family and sharing no land use rights with the latter, upon divorce, the interests of the partner who has no land use rights and does not continue to live with the family shall be settled according to Article 61 of this Law.
Thus, when the land use right is a common property, upon divorce, the parties shall divide the property according to the provisions of Clause 2, Article 62 of the 2014 Law on Marriage and Family in Vietnam.
What are the principles of division of property of husband and wife upon divorce?
Pursuant to Article 59 of the 2014 Law on Marriage and Family in Vietnam stipulating as follows:
Principles of settlement of property of husband and wife upon divorce
1. 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.
2. Common property shall be divided into two, taking into account the following factors:
a/ Circumstances of the family, husband and wife;
b/ 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;
c/ 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;
d/ Each spouse’s faults in the infringement of spousal rights and obligations.
3. 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.
4. 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.
5. 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.
6. 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.
Thus, 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.
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