Cassation Judgment No. 17/2007/DS-GDT dated June 6, 2007 regarding divorce and property dispute in divorce

THE SUPREME PEOPLE’S COURT

CASSATION JUDGMENT NO. 17/2007/DS-GDT DATED JUNE 6, 2007 REGARDING DIVORCE AND PROPERTY DISPUTE IN DIVORCE

……..

On October 3, 2006, the cassation trial is conducted at the office of the Supreme People’s Court to hear the civil case of “divorce and property dispute in divorce between:

Petitioner:  Mrs. Vo Kim Loan, born in 1970;

Respondent:  Mr. Huynh Cong Khanh, born in 1963;

Both petitioner and respondent have resided in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City.

Persons with related interests and obligations:

1. Mrs. Nguyen Thi Xem, born in 1939; permanently residing at 630 Wles Treet, Stpunl MM 55101 USA; temporarily residing in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City;

2. Mrs. Nguyen Kim Oanh, born in 1972;

3. Mr. Doan Van Thi, born in 1969;

4. Mrs. Nguyen Phung Lien, born in 1972;

Mrs. Oanh, Mr. Thi and Mrs. Lien, both residing in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City;

5. Vietnam Bank for Agriculture and Rural Development (hereinafter referred to as Agribank) of Thot Not District, Can Tho City.

FINDING THAT

1. Representation of Mrs. Vo Kim Loan in the petition dated May 4, 2003 and depositions made at the court trial: She and Mr. Huynh Cong Khanh have cohabited since 1986 but they just registered marriage in 2001. They have a common child named Huynh Thanh Tan, born in 1989. Due to conflicts, Mrs. Loan filed a petition for divorce.

With reference to common property:

- In 2000, her mother Mrs. Nguyen Thi Xem, who has stayed abroad, transferred VND 200,000,000 to her and her husband to build a  solid house on the residential land of 200m2 of Mr. Huynh Cong Khe (Mr. Khanh’s father). Household appliances purchased by her mother and siblings abroad for her and her husband consist of: 1 motorbike Honda brand in the name of Mr. Khanh; 2 refrigerators; 2 air-conditioners; 1 cassette; 3 cabinets.

Other property includes:

- A land plot of 856m2 in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City, according to the land use right certificate dated April 13, 2001 in the name of Mr. Huynh Cong Khanh.

- A land plot of 10.800m2 in Thoi Hung Village, Thoi Thuan Commune, Thot Not District, Can Tho City in the name of Mr. Huynh Cong Khanh.

- A land plot of 1.359m2 in Thoi Hung Village, Thoi Thuan Commune, Thot Not District, Can Tho City, according to the land use right certificate dated July 24, 2000 in the name of Mrs. Huynh Thi Re (the transferor).

Mrs. Loan declares that, the land plot of 10,800m2 and the land plot of 856m2 were purchased using the sum of money transferred by her mother Mrs. Xem (Mrs. Xem has currently resided in USA) and that land plot is in the name of Mr. Khanh on behalf of Mrs. Xem. The land plot of 1,359m2 was purchased using the sum of money transferred by her brother Mr. Vo Van Tai and is in her name on behalf of Mr. Vo Van Tai. Mrs. Loan refuses to divide that the above land plot upon divorce because it is not the marital property.

2. Mr. Khanh agrees to divorce and recognize marital property as declared by Mrs. Loan.

In terms of three land plots that Mrs. Loan claims that the land plots of 856m2 and 10,800m2 were purchased using money of her parents and Mr. Khanh had his name in the land use right certificate on behalf of her parents, and the land plot of 1,359m2 was in Mrs. Loan name, he claims that these land plots are their marital property so they should be divided into halves. Then, Mr. Khanh changes his declaration and claims that Mrs. Xem transferred money to his wife and him as a gift, and they used such money to purchase the land plots of 856m2 and 10,800m2 and he had his name in the land use right certificate, so these two land plots are marital property. The land plot of 1,359m2 was purchased on behalf of Mr. Tai, so it is not their marital property.

3. Mrs. Nguyen Thi Xem claims that she transferred money and asked Mrs. Loan and Mr. Khanh to purchase two land plots of 10,800m2 and Mr. Khanh only had his name in the certificate on her behalf. These land plots will be used thereafter to build a house whenever she returns to Vietnam.

The two land plots are not marital property of Mrs. Loan and Mr. Khanh, so she asks them to return the land plots to her.

4. In terms of common liabilities, Mr. Khanh and Mrs. Loan both give their consent to repay.

In the First Instance Judgment No. 126/HNST dated December 17, 2003, People’s Court of Can Tho Province (old), pursuant to Article 85, Clause 1 Article 89, Article 90, Clause 2 Article 92, Article 94 and Article 97 of the Law on Marriage and Family 2000, judged:

With reference to conjugal relationship: Recognize the mutual consent divorce of Mrs. Vo Kim Loan and Mr. Huynh Cong Khanh.

With reference to common children: Mrs. Vo Kim Loan is awarded custody of Huynh Thanh Tan, born in 1989, Mr. Khanh is not required to provide a child support. Mr. Khanh reserves his right to access and take care the common child, which nobody can prevent.

With reference to common property:

The enforcement agency is assigned to hold an auction of the house located on the land of 200m2 in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City which Mr. Huynh Cong Khanh had his name in the land use right certificate No. 000594 dated June 20, 1998; Mrs. Loan and Mr. Khanh will receive a half of the amount sold each.

Mrs. Vo Kim Loan and Mr. Huynh Cong Khanh have to repay the following liabilities:

+ Mrs. Loan has to pay:

- Mr. Doan Van Thi 2.5 taels of 24k gold of 99.9% purity;

- Mrs. Nguyen Phung Lien VND 15,000,000;

- Agribank of Thot Not District VND 13,278,700;

- Mrs. Nguyen Kim Oanh VND 18,375,000.

+ Mr. Khanh has to pay:

- Mr. Doan Van Thi 2.5 taels of 24k gold of 99.9% purity;

- Mrs. Nguyen Phung Lien VND 15,000,000;

- Agribank of Thot Not District VND 13,278,700;

- Mrs. Nguyen Kim Oanh VND 18,375,000.

In terms of land use right:

Mrs. Vo Kim Loan may claim her title to the land plot of 1,359m2 in the land use right certificate No. 214 dated December 9, 2002 in the name of Mrs. Huynh Thi Re. Mrs. Loan may complete the paperwork to transfer the land title from Mrs. Huynh Thi Re to Mrs. Loan.

Mr. Huynh Cong Khanh has to return Mrs. Nguyen Thi Xem the following land plots, which thereafter are in the name of Mrs. Vo Kim Loan as authorized by Mrs. Nguyen Thi Xem:

- The land plot of 856m2 in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City in the parcel 1907 of the map No. 2 in the land use right certificate No. 00047 dated April 13, 2001 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District.

- The land plot of 10,800m2 in Thoi Hung Village, Thoi Thuan Commune, Thot Not District, Can Tho City in the parcel 56, 57 of the map No. 05 in the land use right certificate No. 000173 dated July 24, 2000 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District.

- Request the People’s Committee of Thot Not District to revoke 02 land use right certificate No. 000173 dated July 24, 2000 and No. 000447 dated April 13, 2001 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District to reissue the certificate to Mrs. Vo Kim Loan according to the legal authorization of Mrs. Nguyen Thi Xem.

Mrs. Vo Kim Loan has to pay the first instance marriage and family court fee of VND 50,000 (deducted from the court fee advance paid by Mrs. Loan according to the receipt No. 000842 dated August 6, 2003).

Mrs. Xem may receive VND 50,000 of court fee advance according to the receipt No. 000942 dated November 10, 2003.

Mrs. Vo Kim Loan has to pay VND 3,648,500 and Mr. Huynh Cong Khanh has to pay VND 3,648,500 of division of property court fee.

Mrs. Loan has to pay the first instance civil court fee of VND 2,420,000.

 Mr. Huynh Cong Khanh has to pay VND 2,420,000.

In addition, the Court of First Instance also pronounce the right to appeal of litigants as per the law.

On December 31, 2003, Mr. Khanh filed an appeal, claiming that the divorce settlement is unsatisfactory and the property is divided unfairly.

In the Appellate Civil Judgment No. 13/HNPT dated April 8, 2004, the Court of Appeal of the Supreme People’s Court in Ho Chi Minh City, pursuant to Clause 1 Article 69 of the Ordinance on procedures for resolving civil cases, upheld the First Instance Judgment.

Pursuant to Article 467 and Article 690 of the Civil Code, the Trial Panel judged:

Mr. Huynh Cong Khanh has to return Mrs. Nguyen Thi Xem the following land plots, which thereafter are in the name of Mrs. Vo Kim Loan as authorized by Mrs. Nguyen Thi Xem:

- The land plot of 856m2 in Thoi Thanh Village, Thoi Thuan Commune, Thot Not District, Can Tho City in the parcel 1970 of the map No. 2 in the land use right certificate No. 00047 dated April 13, 2001 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District.

- The land plot of 10,800m2 in Thoi Hung Village, Thoi Thuan Commune, Thot Not District, Can Tho City in the parcels 56, 57 of the map No. 05 in the land use right certificate No. 000173 dated July 24, 2000 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District.

- Request the People’s Committee of Thot Not District to revoke 02 land use right certificate No. 000173 dated July 24, 2000 and No. 000447 dated April 13, 2001 issued to Mr. Huynh Cong Khanh by the People’s Committee of Thot Not District to reissue the certificate to Mrs. Vo Kim Loan according to the legal authorization of Mrs. Nguyen Thi Xem.

Other decisions made in the First Instance Judgment took effect.

After appellate trial, Mr. Huynh Cong Khanh filed a complaint, claiming that the Court of Appeal made an unfair judgment, three land plots were purchased by him and his wife, the court was not right when determining Mrs. Xem’s title to the land plots and assigning Mrs. Loan to use them.

In the Decision No. 43/2007/DS-KN dated April 6, 2007, the Chief Justice of the Supreme People’s Court appeals the aforesaid Appellate Judgment with the following judgment:

“Based on the documents available in the case file, although Mr. Huynh Cong Khanh and Mrs. Vo Kim Loan registered marriage in September 2001, they had held a wedding ceremony and had cohabited since 1986. During living together, Mr. Khanh had his name in the land use right certificates of two land plots, 10,800m2 and 856m2; Mrs. Loan had her name in the land use right certificate of the land plot of 1,359m2.

According to Mrs. Loan’s deposition, the money used to purchase the land plot of 1,359m2 was transferred by Mr. Vo Van Tai (her brother) who lives aboard and she only had her name in the land use right certificate on his behalf, so this is not the marital property; in the first instance trial on December 17, 2003 and in the appellate trial on April 8, 2004, Mr. Khanh also confirmed that the land plot of 1,359m2 in the name of Mrs. Loan was purchased by the money of Mr. Tai, so Mr. Khanh does not claim it as the marital property. Therefore, the Court of Appeal had sufficient grounds to determine that the land plot of 1,359m2 is not the marital property. The land plot of 1,359m2 which is not the common property of Mr. Khanh and Mrs. Loan is not supposed to be settled in the divorce and property division case between Mr. Khanh and Mrs. Loan. However, the Court of First Instance and the Court of Appeal entitle Mrs. Vo Kim Loan to claim her title to the land plot of 1,359m2 in the land use right certificate No. 214 dated December 9, 2002 in the name of Mrs. Huynh Thi Re and she may complete the paperwork to transfer the land title from Mrs. Huynh Thi Re to her. These judgments are not accordant with law.

Regarding 2 land plots of 10,800m2 and 856m2, although Mr. Khanh was issued with the land use right certificates by the People’s Committee of Thot Not District, Mrs. Nguyen Thi Xem (Mrs. Loan’s mother) claims her title to these land plots because she transferred money to Mrs. Loan and Mr. Khanh and asked them to purchase the land plots on her behalf; however, at the court hearing, Mr. Khanh and Mrs. Loan both confirmed that the money used to purchase these land plots belongs to Mrs. Xem (but Mr. Khanh claims that Mrs. Xem transferred money to purchase land plots as a gift to them, and Mrs. Xem and Mrs. Loan refuse that). Because Mr. Khanh failed to present any evidence proving that Mrs. Xem transferred money to him and his wife to purchase the two land plots as a gift to them, so, it is advisable to determine that Mrs. Xem asked them to purchase land plots on her behalf.

However, because Mrs. Xem has been residing abroad and does not do business in Vietnam, she is not entitled to own real estate in Vietnam. Therefore, the Court of Appeal’s judgment that Mr. Huynh Cong Khanh has to return Mrs. Nguyen Thi Xem the land plots, which thereafter are in the name of Mrs. Vo Kim Loan as authorized by Mrs. Nguyen Thi Xem is against the law.

Therefore, the Chief Justice of the Supreme People’s Court requests the Council of Judges of the Supreme People’s Court to conduct a cassation review to quash the decision part of division of property of the above Appellate Civil Judgment and quash the decision part of the division of property of the First Instance Judgment No. 126/HNST dated December 17, 2003 of People’s Court of Can Tho Province (old); and remand the case back to People’s Court of Can Tho City to re-adjudicate it as per the law.

At the cassation trial court hearing, the representative of the Supreme People’s Procuracy consents to the appeal made by the Chief Justice of the Supreme People’s Court.

CONSIDERING THAT

Mrs. Vo Kim Loan and Mr. Huynh Cong Khanh have cohabited since 1986 but they just registered marriage in 2001. While living together, Mr. Khanh had his name in the certificates of 2 land plots (10,800m2 and 856m2) and Mrs. Loan had her name in the certificate of a land plot of 1,359m2. During the case settlement, Mrs. Loan claims that the land plot was purchased using the money of Mr. Vo Van Tai (her brother) who lives abroad and she only had her name in the land use right certificate on his behalf, so that land plot is not marital property. At the first instance court hearing, Mr. Khanh also recognize that the land plot of 1,359m2 in the name of Mrs. Loan was purchased by the amount transferred by Mr. Tai, so he also confirms that that land plot is not marital property; the Court of Instance had sufficient grounds to determine that the aforesaid land plot of 1,359m2 is not marital property and beyond the scope of the divorce and property division case between Mr. Khanh and Mrs. Loan.  However, the Court of First Instance's judgment that Mrs. Vo Kim is entitled to claim title to the land plot and complete the paperwork to transfer the title from Mrs. Huynh Thi Re to her was against the law.  The Court of Appeal upholding the First Instance Judgment without discovering this mistake of the Court of First Instance is against the law.

Regarding 2 land plots of 10,800m2 and 856m2, although Mr. Khanh purchased these land plots and was issued land use right certificates by the People’s Committee of Thot Not District, but Mrs. Nguyen Xem claims that these two land plots were purchased by her money, Mr. Khanh and Mrs. Loan only purchased them on her behalf. At the court hearing, Mr. Khanh confirmed that these two land plots were purchased using the money of Mrs. Xem, however, he claimed that this sum of money was transferred to him and his wife as a gift, so the land plots are their marital property. However, Mr. Khanh failed to present evidence proving that Mrs. Xem gave money to them to purchase two aforesaid land plots as a gift. Mrs. Loan declares that Mrs. Xem transferred money to them to purchase land plots and have their names in the land use right certificates on her behalf. Based on the documents available in the case file, the Court of First Instance and the Court of Appeal had sufficient grounds to determine that the two land plots were purchased by the sum of money of Mrs. Xem.

However, because Mrs. Xem has been residing abroad and does not do business in Vietnam, she is not entitled to own real estate in Vietnam as per the law. Mr. Khanh and Mrs. Loan were transferred land use right legally and issued with the land use right certificates as per the law. In this case, it is advisable to value the land use right and assign the land plots to Mrs. Loan or Mr. Khanh if they wish to use, and they are required to repay Mrs. Xem the amount of money that she transferred them to purchase land plots. In a case where after repayment, there is an outstanding amount (the valued price is greater than the purchasing price), Mrs. Xem will earn a half of such amount, and the other half of amount will be marital property of Mrs. Loan and Mr. Khanh for division. If the value of land use right is less than the amount that Mrs. Xem transferred, Mrs. Loan and Mr. Khanh are only required to repay Mrs. Xem the valued price. The Court of First Instance and the Court of Appeal’s judgments that both determined two aforesaid land plots are owned by Mrs. Xem and accepted Mrs. Xem's authorization for Mrs. Loan to have her name in the land use right certificate was against the law.

Alternatively, when settling the divorce and property division case between Mrs. Loan and Mr. Khanh, Mr. Khanh claims that two aforesaid land plots are their marital property. On November 7, 2003, Mrs. Nguyen Thi Xem filed a complaint, claiming her title to two aforesaid land plots and requesting Mrs. Loan and Mr. Khanh to return them to her. Therefore, there is a ground to determine that Mrs. Xem had a counterclaim, it is supposed to ask Mrs. Xem to submit the court fee advance for her complaint. The Court of First Instance and the Court of Appeal’s acceptance to settle her claim without requiring her to pay a court fee advance was not right.

Due to above-mentioned mistakes, the case must be re-tried under first instance, and therefore the court fee must be re-calculated, therefore, it necessary to quash the First Instance Judgment and Appellate Judgment in terms of division of property and civil court fees.

According to facts and matters, pursuant to Clause 3 Article 291, Clause 3 Article 297 and Clause 2 Article 299 of the Civil Procedure Code;

HEREBY DECIDES

1. Accept the Appeal No. 43/2007/DS-KN dated April 6, 2007 made by the Chief Justice of the Supreme People's Court;

2. Quash the Appellate Civil Judgment No. 13/HNPT dated April 8, 2004 of the Court of Appeal of the Supreme People's Court in Ho Chi Minh City and the First Instance Civil Judgment No. 126/HNST dated December 17, 2003 of People’s Court of Can Tho Province (old) in terms of the “divorce and property dispute in divorce” case between the petitioner Mrs. Vo Kim Loan and the respondent Mr. Huynh Cong Khanh concerning the following decisions: “common property; land plots; property division court fee and civil court fee”;

3. Refer the case file to People’s Court of Can Tho City for re-conducting the first-instance trial as per the law.

Grounds for quashing a part of the First Instance Judgment and Appellate Judgment:

The Court wrongly adjudicated the case in terms of land use right and failed to conduct the counterclaim procedure.