Judgment no. 15/2018/HNGD-ST dated march 26, 2018 on marriage and family dispute

PEOPLE’S COURT OF LANG GIANG DISTRICT OF BAC GIANG PROVINCE

JUDGMENT NO. 15/2018/HNGD-ST DATED MARCH 26, 2018 ON MARRIAGE AND FAMILY DISPUTE

On March 26, 2018 and April 26, 2018, the trial was conducted publicly at the office of People’s Court of Lang Giang District to hear the case No. 77/2017/TLST-HNGD dated March 13, 2017 regarding a marriage and family dispute according to the Decision to Bring the Case to Trial No. 03/2018/QDST-HNGD dated January 4, 2018 between litigants:

* Petitioner: Mrs. Tran Thi H - born in 1986

Registered permanent residence: QM Village, PhM Commune, LG District, Bac Giang Province

Place of residence: Village A, XL Commune, LG District, Bac Giang Province (present)

-Authorized legal representative of petitioner regarding property: Mr. Tran Thuong Ng, born in: 1950; address: Village A, XL Commune, LG District, Bac Giang Province (present)

-The protector of legitimate rights and interests of the petitioner:

1. Mr. Nguyen Van Tr - born in: 1971 (present).

2. Mrs. Tran Thi B - born in 1988 (present) Co-residing in: Village A, XL Commune, LG District, Bac Giang Province

* Respondent:  Mr. Duong Van Q - born in: 1976Place of residence: QM Village, PhM Commune, LG District, Bac Giang Province (present).

The protector of legitimate rights and interests of the respondent: Lawyer Pham Xuan A - Lawyer Office Pham Xuan A, member of Bar Association of Bac Giang Province (present during the trial process, absent upon judgment pronouncement).

* Persons with related interests and obligations:

1. Mr. Duong Ngoc K, born in: 1953; Mrs. Duong Thi Th, born in: 1955; address: QM Village, PhM Commune, LG District, Bac Giang Province. Mrs. Th authorized Mr. K to appear at the court according to the Letter of Authorization dated October 23, 2017 (Mr. K and Mrs. Th are present)

2. Mr. Duong Van C, born in: 1974 and Mrs. Ha Thi H, born in: 1977; address: QM Village, PhM Commune, LG District, Bac Giang Province. Mrs. authorized Mr. C to appear at the court according to the Letter of Authorization dated cut off time 23, 2017 (Mr. C is present).

3. Mr. Luong Van L, born in: 1960, Mrs. Nguyen Thi Tr - born in: 1963. Address: QM Village, PhM Commune, LG District, Bac Giang Province. Mr. L authorized Mrs. Tr to appear the court according to the Letter of Authorization dated October 30, 2017 (Mrs. Tr was present at the court hearing on March 26, 2018, Mr. L was present at the court hearing on April 26, 2018).

4. The People’s Committee of LG District

 Legal representative: Mr. Nguyen Van Ngh - the President of the People’s Committee of LG District

Authorized representative: Mr. Nghiem Phu S (absent)

Address: Voi Town, Lang Giang District, Bac Giang Province

5. Ngoi Sao Bac Giang Joint Stock Company; Address: DT Village, TD Commune, LG District, Bac Giang Province.

Legal representative: Mr. Nguyen Danh H - Director General (absent).

THE CASE

Representation of the petitioner Mrs. Tran Thi H and her authorized representative regarding property Mr. Tran Thuong Nga Tr in the lawsuit petition dated January 9, 2017, the additional petition dated February 23, 2017, the additional petition dated March 13, 2017, and depositions: Mrs. H and Mr. Duong Van Q got married on a voluntary basis and registered marriage at the People’s Committee of PhM Commune, LG District on December 27, 2004. After getting married, they had lived together but did not stay in a happy marriage because Mr. Q has patriarchal behavior. In 2011, Mr. Q worked abroad, in early 2015, he returned to Vietnam, conflict between them started arising out. This came from a case that she discovered that Mr. Q had a message showing his extramarital affair with another woman. Being asked by her, Mr. Q battered the phone down and hit her, she told the family-in-law that case but her parents-in-law disregarded that. In March 2015, she returned to her parents’ family, they have lived separately since then. It is untrue as Mr. Q claims that she has an adulterous affair, because Mr. Q and his family kept forcing her to admit it, she admitted it because of being too tired. Now, she deems that their marital bond breaks, their conflicts become so serious that they cannot reunite, so she asks for divorce from Mr. Q.

With reference to common children: They have two common children: Duong Thi My H, born on November 12, 2005 and Duong Van Ph, born on October 14, 2008, both of them have lived well with her. She claims custody of both of children and requests Mr. Quyet to pay child support of VND 1,600,000 per month from the divorce until they reach 18 years of age.

With reference to common property: They acquired some common assets and request the Court to divide them as per the law, including:

+ The land plot No. 132, map No. 15, area of 306.9m2 in QM Village, PhM Commune, LG District and all facilities on land, including a level-4 3-room house, an animal husbandry facility, a kitchen, a toilet, a well, traditional terra-cotta floortile yard, and wall. The land plot and above facilities have been bought and built by them since 2006. The land plot was granted a certificate of land use right by the People’s Committee of LG District in both their names in 2006. The conditions of land plot remain unchanged since then.

+ VND 25,000,000 spent on shares of Ngoi Sao Bac Giang Joint Stock Company.

+ Insurance payment made to Dai-ichi Insurance Company, Mr. Q signed the insurance policy and she is the beneficiary. Total insurance premiums paid by her from 2010 to 2015 are VND 30 million.

+ Total income Mr. Q earned when he worked in Saudi Arabia which he did not send her from March 2013 to February 2015 and from April 2015 to March 2016, 30 months with VND 10,000,000 per month, totaling VND 300,000,000.

They are all common property of her and Mr. Q, and she requests the Court to divide equally as per the law. She requests equal division of the land plot, and she will acquire the outer part.

In addition, she had VND 86,000,000 from saving deposit and proceeds from shares which her father had bought for her from TX Brick Company before she got married and 17 maces of gold which her parents gave her on the wedding day, this is her private property, she made a private saving deposit. When Mr. Q returned to Vietnam in 2015, he asked her to lend it to her parents-in-law to build a house, she gave the cash and gold to him without any written proof. Now, she requests Mr. Q to pay her the above gold and cash.

Mr. Q determines that she currently has managed VND 300,000,000 which is the sum of money that he sent her from abroad and her salary in a year at Bich Thuy Company and requests the Trial Panel to consider dividing such sum of money equally. She denies it because in fact Mr. Q sent her VND 200,000,000 but she made voluntary social insurance contributions for Mr. Q, and paid Dai-ichi insurance premiums, repaid the debt that Mr. Q borrowed from Mr. K, Mr. C, Mr. Ng, and paid taxes, funds, expenditures on childcare while Mr. Q had been abroad. This sum of money was fully spent.

With reference to the debt: She determines that it was not she but Mr. Q was the person who borrowed Mr. K and Mr. C, then Mr. Q sent money to her to repaid debt to Mr. C and Mr. K, the debt was fully repaid.

Representation of the respondent Mr. Duong Van Q in the deposition dated April 4, 2017, the counterclaim against the petitioner dated June 30, 2017 and subsequent depositions: He agrees with what Mrs. H presented regarding marriage time and conditions. They had lived together happily from the wedding day to February 2015, when he went back from abroad. At that time, they came into conflict, because the daughter told him that Mrs. H has had an adulterous affair with his relative, he and his family asked Mrs. H and she admitted it. Therefore, their conflict became more serious, on March 15, 2015, she arbitrarily returned to her parents’ house, they have lived separately since then. Mrs. H petitions for divorce and he consents to it. With reference to common children, he and Mrs. H have two children as stated by Mrs. H, he claims custody of both children and does not request Mrs. H to pay child support. If Mrs. H is determined to claim custody, he requests the Court to award custody each person a child.

With reference to property: The land plot of 306.9m2 in QM Village, PhM Commune is under their management and use. This land plot was acquired in 2006 when his parents Mr. K and Mrs. Th bought it for VND 15,000,000 according to the population expansion policy After buying the land plot, his parents built a level-4 3-room house, a yard, a pigsty, surrounding walls, after that, he and his wife only built a small kitchen and a bathroom. His parents let them use all above assets since 2006, he and Mrs. H put putting the land ownership in their names, however, his parents claim that they only let him and Mrs. H live there together, not for division of property upon divorce. Thus, they must return all above assets to his parents. If it is required to divide, he requests a portion for his parents, and then equally divides the remaining portion, he will receive the land plot and pay Mrs. H her equivalent portion. The actual land plot being used is different from the land plot stated in the land use right certificate, the area increases because his family exchanged the land plot with Mr. Luong Van L, Mrs. Nguyen Thi Tr horizontally to have a square shape land plot since the land bidding, now because two families has not completed the paperwork for the land exchange and there are facilities on each land plot while both parties have no dispute, he requests the Court to remain the current conditions of two land plots.

Regarding Mrs. H’s claim for VND 25,000,000 of shares of Ngoi Sao Company, he determines that these shares remain unchanged, he agrees to divide the shares equally, he will not pay money.

Regarding his income earned abroad, Mrs. H defines that he still keeps VND 300,000,000 and she requests equal division. He confirms that he does not keep it because his income stated in the contract is 1,000 Riat (equivalent to VND 5,400,000) per month, plus (+) bonus, totaling VND 6 million to 8 million, which is deducted from living expense. He sent all income earned from July 2011 to February 2015 to Mrs. H to cover family’s spending and raise the children. Upon their conflict, Mrs. H returned to her parents’ family, he only continued working abroad for several months, income earned was not enough to buy a return air plane ticket. Then, he refuses this request of Mrs. H.

With regard to Dai-ichi insurance payment, he signed the insurance policy to buy insurance  for Mrs. Hang, he sent his income earned abroad to Mrs. H for her to make payment, this insurance policy has been paid for 4 years, totaling VND 20 million. In April 2015, he ended the contract and was returned VND 7,100,000, he spent this sum of money for him and two children when Mrs. Hang returned to her parents’ house. Now, he refuses to consider it as marital property to divide equally.

He requests the Court to consider that the income earned from Saudi Arabia he sent to Mrs. H was VND 310,000,000, Mrs. H has currently managed it and consider that the income she earned from Bich Thuy Company while he was abroad, 1 year x VND 3,000,000 per month, totaling VND 36,000,000 as the common property to divide as per the law. Request the Court to consider the motorbike being used by Mrs. H as the common property to divide.

With regard to the loans that Mrs. H borrowed from Mr. K and Mr. C, he did not know that until the Court told him, these are loans taken out during the marriage time, he accepts them as the common debt. Regarding the loan borrowed from Mr. Ng, Mrs. H determines that she fully paid, he does not know that.

With regard to VND 86,000,000 and 17 maces of gold Mrs. H claiming as her private asset and sent to him in order him to give Mr. K and Mrs. Th to build the house, he denies it because Mrs. H did not give any to him, so he does not accept Mrs. H’s request.

Representation of person with relevant rights and obligations who made an independent request Mr. Duong Ngoc K: In early 2010, Mrs. H asked him and his wife for a loan to do business, but she did not specify her purpose of using the loan. At that time, as selling bricks, Mr. Q may possibly be in need of capital, he and Mrs. Th agreed to lend up. He lent Mrs. H USD 2,100, as father-daughter relation, he did not make any written proof, did not charge interest or determine due date, he only said they may repay whenever they have money. When Mrs. H asked for money, he was unclear if Mr. Q and Mrs. H told each other about, he did not ask her. Now, he confirms that Mrs. H has not repaid money, he requests Mr. Q and Mrs. H to jointly repay him the debt equivalent to VND 46,500,000, he does not charge the interest.

The land plot and assets thereon in QM Village, PhM Commune under management and use of Mr. Q and Mrs. H were bought and built by him and his wife. When Mr. Q and Mrs. H were granted the land use right certificate, he knew that and gave no opinion because he gave these assets to them, but now if Mr. Q and Mrs. H get divorce, he reclaims the above land plot and assets thereon. And he has no more requests.

Mrs. Duong Thi Th confirms that Mr. K’s deposition is appropriate, she requests Mr. Q and Mrs. H to return them VND 46,500,000, if Mr. Q and Mrs. H get divorce, they must return the land plot and assets thereon to them.

Representation of Mr. Duong Van C in the independent lawsuit petition and depositions: In early 2011, Mrs. Tran Thi H, Mr. Q’s wife, asked for a loan of one SJC tael of gold, when he lent money, Mr. Q was not present there, he also did not know Mrs. H’s purpose of using the loan and if Mrs. H and Mr. Q had discussed with each other before, but he agreed to lend because they are relatives, they did not make any written proof or charge interest and only told her to repay whenever she has money, he handed over Mrs. H the whole 1 SJC tael of gold. Mrs. H has not repaid him the above gold so far, he determines that this is his marital property. As Mrs. H is the borrower, this is her private debt, he only requests Mrs. H to repay. Mrs. Ha Thi H, Mr. C’s wife, consents to Mr. C’s deposition and authorizes Mr. C to participate in legal proceedings.

Representation of Mrs. Nguyen Thi Tr, Mr. Luong Van L: They have a land plot of 240m2 in QM Village, PhM Commune, adjacent to the land plot of Mr. Duong Van Q, Mrs. Tran Thi H. Under the land use right certificate, her land plot and Mr. Q’s land plot are both 6m wide, adjacent to the inter-village road and extending vertically, after the land bidding, they and Mr. K and Mr. Q mutually agreed to exchange the land plot horizontally, Mr. K and Mr. Q took the outer land plot adjacent to the inter-village road, and his family took the inner land plot, the village authority measured the land plots for the families as agreed. After exchanging the land plots, the families built facilities on land, used the land stably and do not have dispute, however, they have not completed the paperwork for land exchange to the People’s Committee of Commune, thus, the conditions of land plots in reality and in the land use right certificate are different. Mrs. Tr, Mr. L request the Court to consider retaining the conditions of two houses, and her family will keep using the exchanged land plot of Mr. Q, the family of Mr. Q and Mrs. H will keep using the exchanged land plot of her family. The land use right certificate of her family is in the name of Mr. Duong Quang H, because at first her land plot was registered to buy by the family of Mr. Hien, but then they abandoned, thus her family registered, made payment, received and exchanged the land plot with the family of Mr. Q, not Mr. H. She does not know why the People’s Committee of LG District granted the land use right certificate to Mr. H, she did not know that until she obtained the certificate, after that, she completed the paperwork to certify her land use right. Mr. H has never used the above land plot.

Representation of the People’s Committee of LG District in the document No. 1487 dated December 28, 2017, represented by Mr. Nghiem Phu S: On January 23, 2006, the People’s Committee of LG District granted a land use right certificate to the household of Mr. Duong Van Q, Mrs. Tran Thi H for the land plot No. 132, the map No. 15, area of 306.9m2, purpose of use: rural homestead land. Mr. Duong Quang H was granted a land use right certificate for the land plot No. 151, the map No. 15, area of 242.3m2. After being granted land use right certificates, the two households of Mr. Q, Mrs. H, Mr. H arbitrarily exchanged the land plots but have not made the registration application as prescribed to the competent authority. Pursuant to the Law on Land 2013 in Viet Nam and guiding documents, both households have to register and declare with the branch of land registration office to complete the paperwork for separation of the exchanged land plot; and establish the contract for transfer of land use right for the exchanged land plots (boundaries and area). Because of busy work, Mr. Nghiem Phu S filed a request for trial in absentia to the Court.

The representative of Ngoi Sao BG Joint Stock Company confirms that Mr. Duong Van Q bought shares from the Company, totaling 2,500 shares, VND 10,000 per share. Mr. Q has currently kept these shares. It is impossible to calculate the increase and decrease in value of shares and, so the initial value still be used Regarding the determination of whether this is the common property of Mrs. H and Mr. Q or how to divide it, it will be left to the Court under the provisions of law. The company will enable shareholders in carrying out procedures for transfer of shares if any. The representative of the company proposed to be absent in the process of the Court's resolution of the case.

At the court hearing:

The petitioner Mrs. Tran Thi H, Mr. Tran Thuong Ng and the protector of legal right still keeps their opinions to sue, ask the Court to grant Mrs. H and Mr. Q divorce and ask Mr. Q pay the child support from March 2015 to March 2018 of VND 1,600,000/01 child/01 month equaling VND 121,600,000, ask Mr. Q to pay child support until the child is 18 years old, VND 1,600,000/01 child/1 month. In terms of assets, all land plots and assets on land in QM Village, PhM Commune are the common property of Mrs. H and her husband, which has been granted a land use right certificate by the People’s Committee of LG District in 2006. Mrs. H did not know about the exchange of land with Mrs. L's house, but the area of ​​the residential land of Mrs. H and Mr. Q since receiving land is still in use until now, requesting to divide the land plot according to the granted land use right certificate, Mrs. H asks for the outer part adjacent to the inter-village road for children later, and asks for equal division of the shares in the Ngoi Sao Joint Stock Company of VND 25,000,000, she would like to receive the portion in cash. The amount of Dai-Ichi Insurance paid back is VND 7,100,000, Mrs. H agrees the equal division. Requesting to divide the amount of VND 300,000,000 which is the income during the time when Mr. Q worked in Saudi Arabia from 2014 to 2015. Requesting Mr. Q to pay her VND 86,000,000 and 17 maces of gold only as her own assets. Mrs. H does not agree with Mr. Q's request for the amount of VND 310 million because there is no such sum of money. Not agreeing to the petition of Mr. K, Mr. C because she did not borrow, Mr. Q was a borrower, who sent the money to repay Mr. K and Mr. C, all loans and payments have no written proof. Since there is no valid ground for forcing Mrs. H to repay the debt, she asks the Court to dismiss this request.

Respondent Mr. Duong Van Q: Agrees to ask the Court to resolve the divorce and ask the Court to grant him the custody of both children. If both of them claim custody of children, he asks the Court to award each one custody of a child, he would not claim any particular child. Regarding request asking him to pay child support from March 2015 to March 2018, he does not accept it. Regarding property, he proposes to keep the agreement on exchanging land plot, consider the land plot according to the actual use status, determine that the land plot and the house is the property of his parents, not the common property of him and his wife, and require the Court to allocate him the whole land plot. Regarding VND 25,000,000 of shares in Ngoi Sao Company and Dai-ichi insurance return of VND 7,100,000, he agrees to divide them equally. He does not agree to divide VND 300,000,000 equally as claimed by Mrs. H because he did not have such money, and all income earned was sent to Mrs. H. He does not agree with Mrs. H's request for the amount of VND 86 million and 17 maces of gold because Mrs. H did not give it to him. He asks the Court to consider the amount of money sent to Mrs. H during the time he worked abroad, which Mrs. H has currently managed as common property to be divided into halves. For the debts owed to Mr. K, Mr. C, he did not know, so as Mrs. H borrowed them, she has to pay. It is not the common debt of them For Mrs. H's motorbike mentioned in the petition that he asked for a consideration, now he has made no further request so far.

Mr. Q's lawyer asks the Trial Panel to apply articles 89, 91, 92, 95 and 97 Law on Marriage and Family to judge as follows: accept the divorce petition, award both Mrs. H and Mr. Q custody of children, one child for one person, no one has to pay child support. Regarding property: propose the Court to allocate Mr. Q to use the entire land plot according to the current situation and to own all the assets on the land, Mr. Q is obliged to pay Mrs. H her portion in the common property in cash but Mr. Q's contribution in the forming of common property should be greater. Propose to divide the number of shares in two, Mrs. H will receive a half, equivalent to 1,250 shares valued at VND 12,500,000, Mr. Q will receive a half, equivalent to VND 12,500,000. Mr. Q must pay Mrs. H a half of the insurance return of VND 3,550,000. Mrs. H confirms that Mr. Q sent her about VND 200 million, 100 million of which was spent on social insurance premiums and Dai-ichi insurance premiums. She will pay Mr. Quyet a half of the remaining amount, equivalent to VND 50,000,000.. Propose to dismiss Mrs. H’s request, asking for the amount of VND 310,000,000 which is the common property and the amount of VND 86,000,000 and 17 maces of gold only as her own money held by Mr. Q because she has no valid basis.

Mr. Duong Ngoc K, Mrs. Duong Thi Th still keeps the lawsuit request, he requires Mrs. H to repay the debt because she is the borrower, the debt is VND 46,500,000.

Mr. Duong Van C still keeps the lawsuit request, asks Mrs. Tran Thi H to pay him and his wife 01 SJC tael of gold of VND 36,000,000, he does not require interest payment.

Mr. L, Mrs. Tr determined that the land exchange was agreed by two families since 2006, the two sides do not have any dispute, after exchanging land, their house and facilities were built after Mr. Q’s house and facilities they propose to maintain the current state of the land plots, for the reason that the house, annex, yard, and gate of his family have been built on the exchanged land plot; if they are required to be taken down, the entire building work will be destroyed, if Mrs. H asks to divide the whole exchanged land plot, she must compensate for the damage to the whole construction.

Representative of People's Committee of LG District and representative of BG Ngoi Sao Joint Stock Company are absent at the trial.

The prosecutor of People's Procuracy of Lang Giang District confirms that the Judge, Trial Panel, and Court Reporter have complied with procedural law in the process of resolving the case. From the acceptance of the case to the time before the deliberation, the petitioner, the respondent and the persons with related rights and obligations have observed with laws and regulations and have fully exercised their rights and obligations. Regarding the content of the case, on the basis of the lawsuit petitioner of the petitioner, and requests of the respondent and the persons with related rights and obligations and taken evidence assessed at the court session, the procurator requests the Trial Panel to apply Articles 27; 33, 37; 55, 57, 58; 60; 62, Articles 81, 82, 83 of the Law on Marriage and Family; Articles 12, 27 of Resolution No. 326 on Court Charges and Fees.

Recognize the amicable divorce between Mrs. Tran Thi H and Mr. Duong Van Q.

The common children: award Mrs. H custody of Duong Thi My H, born on November 12, 2005; award Mr. Q custody of Duong Van Ph, born on October 14, 2008. No one has to pay the child support.

With reference to property: Request the Court to accept the agreement on land exchange between Mr. Q's family and Mrs. Tr’s family. Confirm that the area of ​​336.9m2 currently used by Mr. Q and Mrs. H includes a part of the land plot No. 132, map No. 15 of Mr. Q, Mrs. H granted a land use right certificate and a part of the land plot No. 151, map No. 15 of Mrs. Tr's family, Mr. L and all the assets built on the land including four-level houses, pigsty, kitchen, bathroom, gate, traditional terra-cotta floortile yard, fibre cement sheets, walls, VND 25,000,000 of shares at BG Ngoi Sao Company; Dai-ichi insurance return of VND 7,100,000, which Mr. Q has currently kept as common property of Mr. Q and Mrs. H. They propose to divide them into halves. Propose to divide Mrs. H ​​land plot of 199 m2 adjacent to the inter-village road, divide Mr. Q land plot of 137.3 m2 adjacent to the land plot of Mr. L, Mrs. Tr with the house, pigsty, kitchen, yard, gate thereon. Propose to dismiss Mrs. H’s claim for the amount of VND 300,000,000 as a common asset to divide. Dismiss Mrs. H’s claim for VND 86,000,000 and 17 maces of gold as her own property. Dismiss Mr. Q’s claim to ask for the amount of money he determined that Mrs. H has currently managed about VND 100,000,000 as a common asset to divide. Dismiss the request of Mr. K and Mrs. Th to claim Mrs. H to pay the loan amount of USD 2,100 equal to VND 46,500,000. Dismiss the request of Mr. C and Mrs. Ha Thi H to claim Mrs. H to repay 01 SJC tael of gold equivalent to VND 36,000,000. For Mrs. H's request to ask the Court to consider forcing Mr. Q to pay child support from March 2015 to March 2018, VND 1,600,000 per month, it is beyond the scope of initial lawsuit request, so it is should not be considered in this case, Mrs. H has the right to sue in another case.

Mr. Q and Mrs. H must pay the valuation fee and court fees as prescribed. Mr. C and Mrs. H must bear the court fee according to the provisions of law. As senior citizens, Mr. K, Mrs. Th are exempt from court fees.

In addition, the prosecutor proposes the Trial Panel to consider the applicant's right to appeal.

JUDGEMENT OF THE COURT

After studying the documents in the case file, after examining the evidence at the trial; based on the results of arguments at the trial, the Trial Panel considers:

 [1] The lawsuit petition of the petitioner Mrs. Tran Thi H, request of the respondent Mr. Duong Van Q and independent request of persons with related rights and obligations Mr. K, Mr. C and documents included are valid, in compliance with the provisions of the Civil Procedure Code in terms of the form and content of the petition. This is marriage and family dispute, the litigants petition for divorce, settlement of child custody, division of common property and common obligations, based on Clause 1, Article 27, Article 37, Article 39 of the Civil Procedure Code in Viet Nam under the jurisdiction of People's Court of Lang Giang District.

 [2] In terms of court procedures: The People's Court of Lang Giang District has accepted and settled the case in accordance with the civil procedures. At the court hearing, the persons with related rights and obligations including the representative of People's Committee of LG District, representative of BG Ngoi Sao Joint Stock Company are absent, but they filed request for trial in absentia, therefore the Trial Panel, pursuant to Articles 227 and 228 of the Civil Procedure Code, hear the case. This is a decision in accordance with the law.

 [3] With reference to conjugal relationship: Mrs. Tran Thi H and Mr. Duong Van Q got married on a voluntary basis, having registered their marriage at the People's Committee of PhM commune, LG District on December 27, 2004 and were granted a marriage registration certificate, so marriage between Mr. Q and Mrs. H is legal, protected by law.

With reference to marital status: The testimonies of Mrs. H, Mr. Q, Mr. K, Mr. Ng, as well as local verification shows that, after marrying Mr. Q, Mrs. H had lived together in harmony until February 2015 when Mr. Q returned home after working abroad, they had fierce conflicts, because they had doubts, did not trust each other about marital affections while they lived apart, so Mrs. H has returned to her parents’ house since March 2015. In fact, Mr. Q and Mrs. H has not been able to reconcile themselves. During the Court's resolution of the case, he and she were determined to divorce, now at the trial, the Trial Panel also facilitate the reconciliation between Mr. Q and Mrs. H but they all determined that they were no longer in love, and asked for divorce, so the Trial Panel, pursuant to Article 55 of the Law on Marriage and Family in Viet Nam, accepted the amicable divorce of Mrs. H and Mr. Q.

 [4] With reference to common children: Mr. Q, Mrs. H has two common children, Duong Thi My H, born on November 12, 2005 and Duong Van Ph, born on October 14, 2008, both of them are healthy. Mr. Q and Mrs. H both seek custody of both children, H and Ph all propose the Court to live with their mother. However, considering the current conditions and circumstances of Mr. Q and Mrs. H, the Trial Panel finds that Mrs. H is now living with her parents, is in poor health, often sick, besides working as a farmer, she is no longer working at any company, so if she is awarded custody of both children, it is difficult for her to take care of the children. Mr. Q is a farmer working in agriculture and animal husbandry, it is also impossible for him to take care of both children. Therefore, it is appropriate for the Trial Panel to consider giving each person custody of a child, specifically granting Mr. Q custody of Ph, granting Mrs. H custody of H. Since each person is awarded custody of a child, no one has to pay child support.

Regarding Mrs. H's request at the trial, asking Mr. Q to pay child support for two children, VND 1,600,000/month/01 child during the period from March 2015 to March 2018 equivalent to VND 121,600,000, the Trial Panel considers that Mr. Q disagrees with this request of Mrs. H and he is not obliged to pay the child support during the marriage period as prescribed in the Law on Marriage and Family 2014, but the noncustodial parent is obliged to pay the child support after divorce under Article 82 of the Law on Marriage and Family, so the Trial Panel does not accept for this request of Mrs. H.

 [5]. Regarding the claim for common property division, considering the debt repayment obligations of the petitioner, the respondent as well as the independent request of person with related rights and obligations.

+ For land plot No. 132, map No. 15 in QM Village, PhM Commune, LG District, Bac Giang Province, with the land use right certificate granted by the People's Committee of LG District No. AD523331 dated January 23, 2006, the users are Mr. Duong Van Q and Mrs. Tran Thi H, with the area mentioned according to the certificate is 306.9m2. Mr. Q, Mr. K, Mrs. Th determine that the land plot and assets on the land owned by Mr. K, Ms. Th must be returned to Mr. K and Mrs. Th. The Trial Panel finds that, through verification, in fact, since 2006, Mr. Q and Mr. H and his wife have been granted a land use right certificate by Lang Giang District People's Committee and Mr. Q and Mrs. H are those who have lived on that land plot, not Mr. K and Mrs. Th. The receipt dated April 19, 2012 states that the remaining land payment and land levies were all paid by Mr. Duong Van Q and Mrs. Tran Thi H, besides Mr. Q, Mrs. H has been granted a land use right certificate since 2006, Mr. K and Ms. Th Khai both know that and have no idea, so the Trial Panel determines that the land plot and all assets on the land currently assessed on November 30, 2017 are common property of Mr. Q and Mrs. H. Mr. K and Mrs. Th have no valid basis to require Mr. Q and Mrs. H to return them the land plot. However, as they do not make a written reclaim for land plot and assets thereon, the Trial Panel deems it as their opinion

According to the survey and appraisal result made on November 30, 2017, the actual land area used by Mr. Q's family is 336.9m2, with a change in land plot condition and area compared to the land use right certificate granted by the People’s Committee of LG District to Mr. Q’s household in 2006. After checking, it is considered that a part of the land plot belongs to the parcel No. 132, map 15 of the land use right of Mr. Q and Mrs. H's family, the other part of land plot belongs to the parcel No. 151, map No. 15 under the land use right of the household of Mrs. Nguyen Thi Tr and Mr. Luong Van L which has been granted the use right certificate by the People's Committee of LG district. The rest land plot of Mr. Q's family under the granted use right certificate is 126.6m2 has been currently managed and used by Mr. L and Mrs. Tr's family. Considering the depositions of Mrs. Tr, Mr. L, Mr. Q, Mr. K, Mrs. Th and verification of the representative of QM Village, representative of PhM Commune People's Committee, it is found that after receiving the land plots, the household Mrs. Tr, Mr. L and Mr. Q, Mrs. H immediately reached an agreement to exchange the land plots by dividing the parcel of land horizontally, excluding the difference, the two parties have used it stably and built houses and facilities on the land plot since 2006 so far, the two parties have no dispute. However, Mr. Q and Mrs. Tr's family, Mr. L have so far not completed the paperwork for exchanging land use rights for each other under the provisions of the Civil Code as well as the current Land Law. According to the certificate of land use right of Mr. Tr’s family, at first, her land plot ownership was put in the name of Mr. Duong Quang H, but in fact, Mr. H is only the initial bidder. Then, he neither bought or used the land plot or exchanged land with Mrs. Tr and Mr. L's family, then Mrs. Tr and Mr. L also completed procedure for ownership transfer as per the law. Considering the opinions of the parties, as well as the opinions of the local authority, considering the land plots that the two families have exchanged for each other, they have built solid houses, if dismantled, the building and facilities will be devalued for each party, the parties did not dispute with each other on the land plots, so the Trial Panel finds that it is necessary to maintain the current use status for the households, ensure to keep the property value, respect the expectation of the parties. When dividing land, the Trial Panel temporarily allocates the corresponding land plots to Mr. Q and Mrs. H's family and Mrs. Tr and Mr. L’s family and requests the concerned parties, after the judgment takes effect, they must complete the paperwork for splitting and combining parcels of land with the competent authority in accordance with the applicable land law.

Common property of Mr. Q and Mrs. H include the land plot of ​​336.9m2, VND 550,000/m2 valued at VND 185,295,000; 01 grade-2 level- 4 house valued at VND 20,884,000; 01 type-C kitchen valued at VND 1,030,000; 01 type-B pigsty valued at VND 4,671,000; 01 type-B bathroom valued at VND 795,000; 02 fibre cement sheets valued at VND 672,000; 01 yard of traditional terra-cotta floortile valued at VND 3,109,000; 01 wall 25 m long valued at VND 3,016,000; 01 iron gate valued at VND 443,000. Totaling VND 219,915,000.

+ For the amount of shares of VND 25,000,000 in the name of Mr. Q at Ngoi Sao Company in DT Village, TD Commune, LG District, Mr. Duong Van Q is the owner of 2,500 shares with par value of VND 10,000/share and still own the above shares. Up to now, both Mr. Q and Mrs. H have acknowledged that these shares are their common assets, so the Trial Panel determines that this is the common property of Mr. Q and Mrs. H.

+ For Dai-ichi insurance payment, at the court hearing, Mrs. H and Mr. Q both confirm it as the amount returned by the insurance company for breaking the contract of VND 7,100,000, managed by Mr. Q and counted as common property for division, the Trial Panel shall consider it as the common property of Mr. Q and Mrs. H.

Thus, the total value of common property of Mr. Q and Mrs. H is VND 252,015,000, which is equally divided to Mr. Q and Mrs. H. Because Mr. Q and Mrs. H both wishes to receive the land plot, but considering that Mrs. H is a woman who has currently lived off her parents and has suffered greater financial hardship, the Trial Panel deems it suitable to allocate Mrs. H the part of ​​land plot with a house and auxiliary facilities thereon adjacent to Mr. L and Mrs. Tr's land plot and allocate Mr. Q the outer part of the land plot.

For the amount of VND 300,000,000 that Mrs. H determines as the income Mr. Q earned in Saudi Arabia which he retained during the period from March 2013 until February 2016, she asks to divide it by law, Mr. Q did not admit he kept this sum of money. The Trial Panel finds that in addition to the testimony of Mrs. H, there was no other document to prove that Mr. Q has held the amount of VND 300,000,000, besides that at the trial, Mrs. H also determined that Mr. Q sent money to her in the time he was abroad, among vouchers of money transfer at the bank, there are documents proving that she received money in 2014, and from May 2015 until February 2016, this is the time when the husband and wife were in conflict, living separately, so the Trial Panel finds that there is no basis to determine whether the amount of money above was the common property of Mr. Q and Mrs. H to divide, so the Trial Panel does not accept the request of Mrs. H.

For Mrs. H's request for the amount of 86,000,000 VND and 17 gold only, Mrs. H determined that her personal property has been given to Mr. Q for Mr. Q to have Mr. K and Mrs. Loan to build houses, in fact beyond words. above, Mrs. H did not have documents, evidence, no witness to the money delivery, Mr. Q did not acknowledge, so Mrs. H asked Mr. Q to not be considered and accepted.

For Mr. Q's request to determine that Mrs. H has currently managed VND 310,000,000 and at the trial, Mrs. H also managed VND 100,000,000 as a common property he requested to divide. The Trial Panel finds that Mrs. H admitted that she received money from Mr. Q about VND 200 million, she paid Dai-ichi insurance premiums, made voluntary social insurance contributions for Mr. Q, and repaid money owed to Mr. K, Mr. C, Mr. Ng, took care of their children at the hospital and family expenses. Mr. Q presented money transfer documents including: Payment order dated January 21, 2014, Mrs. H received USD 1,309; payment order dated December 9, 2013, Mrs. H received USD 765; payment order dated October 8, 2013, Mrs. H received USD 1,740; transfer notes dated June 27, 2012, Nguyen Van Tr transferred to Tran Thi H USD 870; and dated January 5, 2012, Nguyen Van C transferred to Tran Thi H USD 870.17, and there are no other documents. The Court has verified at the Vietnam Bank for Agriculture and Rural Development which is the credit institution Mr. Q sent money to Mrs. H, but Vietnam Bank for Agriculture and Rural Development determines that there is no information about the date of receipt of Mrs. Tran Thi H's money so there is no basis to check transactions arising in the period from 2011 to 2015. Thus, although Mrs. H admitted that Mr. Q sent about VND 200 million, but the fact shows that when Mr. Q worked abroad from early 2011 to early 2015, Mrs. H was the one who covered the land plot payment, Dai-ichi insurance premiums, voluntary social insurance contributions, taxes, fund and family expenses. Mr. Q did not have any evidence to prove that Mrs. H still manages the money he sent, so the Trial Panel considers that his request is not well-grounded to accept.

For Mr. Q’s request to consider Mrs. H's salary earned in 01 year at BTh company of VND 36,000,000 as a common asset to divide, in fact the Court has verified at BTh company and determines that the average salary for an unskilled worker like Mrs. H is VND 2,300,000 to VND 2,500,000/person/month. With the salary as above, it was not enough for Mrs. H pay for living expenses of her and her daughters. Therefore, Mr. Q’s request has no basis and will not be accepted.

As for Mr. Duong Ngoc K's reclaim for USD 2,100 lent to Mrs. H and Mr. Duong Van C’s reclaim for 01 SJC tael of gold lent to Mrs. H, the Trial Panel finds that Mr. K and Mr. C both determine that they had lent Mrs. H in person, but did not made a loan document, and at that time Mr. Q had gone abroad and he did not know about Mrs. H's own debt, so they require Mrs. H to pay. Mr. Q does not acknowledge this loan and he does not know it. However, Mrs. H determines that Mr. Q was a borrower, not her, Mr. Q told her that he had borrowed money from Mr. K, Mr. C before going abroad and when Mr. Q sent money to her, she repaid Mr. K, Mr. C on behalf of Mr. Q, besides the above testimony, Mrs. H has no other evidence. The Trial Panel finds that, the litigants had conflicting testimony, confronted at the trial, Mrs. H does not acknowledge the loan, Mr. Q determines he does not know about it, in addition, there is no evidence and documents to prove the above loan. The Trial Panel finds that request of Mr. C's, Mr. K is not well-grounded to accept it.

As Mr. Q determines the motorbike managed by Mrs. H is the common property, he does not require further settlement, so the Trial Panel does not consider it further.

 [6]. Regarding the cost of asset valuation, the assessment of asset measurement on November 30, 2017 of VND 8,000,000, Mrs. H, Mr. Q has not pay VND 4,000,000 each. The cost of evaluation on April 23, 2018 is VND 1,000,000, to be paid by Mr. Q.

Total cost of valuation, appraisal, measurement is VND 9,000,000, Mr. Q, Mrs. H are divided assets, so they have to bear the same cost, each person has to pay VND 4,500,000. Mr. Q paid VND 5,000,000, Mrs. H paid VND 4,000,000, so it is necessary to compel Mrs. H to return him VND 500,000.

 [7]. Regarding court fee: Mr. Q, Mrs. H, Mr. C must bear court fee as prescribed. Mr. K and Mrs. Th are exempted from court fees as prescribed by law.

The petitioner, the respondent, the persons with related rights and obligations have the right to appeal the judgment as per the law.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Articles 27; Article 37; 55, 57, 58, 60, 61; 62; 81, 82, 83 of the Law on Marriage and Family 2014; Articles 28; 35; 39; 70, 71, 72, 147; 235; 266; 271; 273 of the Civil Procedure Code; Article 12, Article 26; Article 27 Resolution No. 326/2016/UNTVQH in Viet Nam regulating Court Charges and Fees;

* Regarding conjugal relationship: Recognize the amicable divorce between Mrs. Tran Thi H and Mr. Duong Van Q.

* With reference to common children: Award Mrs. Tran Thi H custody of Duong Thi My H, born on November 12, 2005; award Mr. Duong Van Q custody of Duong Van Ph, born on October 14, 2008.

After divorce, Mrs. H and Mr. Q both have parental visitation rights that no one can interfere

Regarding support: no one has to pay child support.

With reference to property:

Confirm that the land area of ​​336.9m2 of Mr. Duong Van Q and Mrs. Tran Thi H Q's family currently using is the common property of Mr. Q and Mrs. H, 168.5 m2 of land of which belongs to parcel No.132, map No. 15, in QM Village, PhM Commune, LGg District, granted land use right certificate by People's Committee of LG District No. AD523331 on January 23, 2006 to Mr. Q. and Mrs. H and 168.4 m2 of land of which belongs to parcel No. 151 , map No. 15, in QM Village, PhM Commune, LG District, granted a land use right certificate No. 523313 on January 23, 2006 by the People's Committee of LG District to Mr. Luong Van L and Ms. Nguyen Thi Tr. The land value is VND 185,295,000.

Confirm the assets on the land including: 01 level-4 house valued at VND 20,884,000; 01 kitchen valued at VND 1,030,000; 01 pigsty valued at VND 4,671,000; 01 bathroom valued at VND 795,000; 02 fibre cement sheets valued at VND 672,000; 01 yard of traditional terra-cotta floortile valued at VND 3,109,000; 01 wall 25m long valued at VND 3,016,000; 01 iron gate valued at VND 443,000 and the amount of VND 7,100,000 Dai-ichi insurance premiums, 2,500 shares of Ngoi Sao Company valued at VND 25,000,000 which are the common property of Mr. Duong Van Q and Mrs. Tran Thi H.

Total common property of Mr. Q and Mrs. H is VND 252,015,000 (two hundred and fifty two million and fifteen thousand Vietnamese dong).

Division of property:

Allocate Mr. Duong Van Q to use the area of ​​78.5m2 of land plot No. 132, map No. 15, in QM Village, PhM Commune, LG District, granted land use right certificate No. AD523331 by the People's Committee of LG District on January 23, 2006 to for Mr. Q, Mrs. H and temporarily hand over Mr. Q 93 m2 of land plot No. 151, map No. 15, in the QM Village, PhM Commune, LG District, granted the land use right certificate by People's Committee of LG District, granted land use right certificate No. 523313 on January 23, 2006 to the household of Mr. Luong Van L and Mrs. Nguyen Thi Tr. Total land area is 171.5m2, this land is bordered to the southern side by the inter-village road, to the west by the inter-village road, to the north by the land plot allocated to Mrs. Tran Thi H, to the east by the land plot of Mr. Hong (with diagram attached), the land value is VND 94,325,000 and the property on land with the wall valued at VND 3,016,000. Mr. Q may own 2,500 shares, valued at VND 25,000,000 at BG Ngoi Sao Joint Stock Company and the amount of VND 7,100,000 in Dai-ichi insurance return to him.

The total value of the assets Mr. Q is entitled to: 129,441,000 VND (one hundred and twenty nine million, four hundred and forty thousand dong). Mr. Q must give her a share of VND 3,500,000 in asset difference. The value of Mr. Q's property is VND 125,941,000 (one hundred and twenty five million nine hundred and forty one thousand Vietnamese dong).

Allocate Mrs. Tran Thi H the right to use the land area of ​​90m2 in land plot No. 132, map No. 15, in QM Village, PhM Commune, LG District, granted the land use right certificate by the People's Committee of LG District No. AD523331 on January 23, 2006 to Mr. Q and Mrs. H and temporarily allocate Mrs. H 75.4 m2 of land in the parcel No. 151, the map No. 15, in the QM Village, PhM Commune, LG District, granted the land use right certificate No. 523313 on January 23, 2006 to the household of Mr. Luong Van L and Mrs. Nguyen Thi Tr.

The total area is 165.4m2, this land is bordered to the north by Mr. L's house, to the south by land plot allocated to Mr. Q, to the east by the land plot of Mr. H, to the west by the inter-village road (with attached diagram), the land value is 90,970 .000 VND and the ownership of assets on land including: 01 level-4 house valued at VND20,884,000; 01 kitchen valued at 1,030,000 VND; 01 pigsty valued at VND 4,671,000; 01 bathroom valued at VND 795,000; 02 fibre cement sheets valued at VND 672,000; 01 yard of traditional terra-cotta floortile valued at VND 3,109,000; 01 iron gate valued at 443,000 VND.

Mrs. H is entitled to receive a sum of money from Mr. Q to divide the difference of VND 3,500,000.

The total value of assets Mrs. H entitled to is 126,074,000 VND (one hundred and twenty-six million seven hundred and four thousand Vietnamese dong).

After the judgment takes legal effect, the litigants are obliged to complete paperwork for a land use right certificate for the allocated land area at the competent authority as per the law.

Reject Mrs. Tran Thi H claim for VND 300,000,000 currently managed by Mr. Q as the common property.

Reject Mrs. H’s claim for VND 86,000,000 and 17 maces of gold from Mr. Q as her personal property.

Reject Mr. Q's claim for VND 100,000,000 currently managed by Mrs. H as the common property.

Reject request of Mr. Duong Ngoc K, Mrs. Duong Thi Th, claiming Mrs. Tran Thi H to repay the amount of USD 2,100 equivalent to VND 46,500,000.

Reject request of Mr. Duong Van C, Mrs. Ha Thi H, claiming Mrs. Tran Thi H to repay 01 SJC tael of gold equal to VND 36,000,000.

Regarding asset valuation cost: Mrs. Tran Thi H, Mr. Duong Van Q has to pay VND 4,500,000 in cost of measurement, appraisal, valuation. Mrs. H paid VND 4,000,000, Mr. Q paid VND 5,000,000 in advance. Mrs. H must return Mr. Q VND 500,000 of evaluation cost.

With reference to court fees:

Mrs. Tran Thi H has to pay VND 300,000 of divorce court fee and VND 6,303,000 of property division court fee, deducted from the paid court fee advance of VND 4,862,000 according to the receipt of court fee and charge advance No. AA/2015/0002218 dated March 13, 2017 of the Sub-department of Civil Judgment Enforcement of Lang Giang District.  Mrs. H has to pay the court fee of VND 1,741,000.

Mr. Duong Van Q has to pay VND 6,297,000 of property division court fee, deducted from the paid advance payment of VND 4,250,000 according to the receipt No. AA/2015/0002410 dated July 4, 2017 of the Sub-department of Civil Judgment Enforcement of Lang Giang District. Mr. Q has to pay the court fee of VND 2,047,000

Mr. Duong Van C has to pay VND 1,800,000 for the first instance court fee for unaccepted request, deducted from the paid advance court fee of VND 900,000 according to the receipt No. AA/2015/0002412 dated July 4, 2017 of Sub-department of Civil Judgment Enforcement of Lang Giang District. Mr. C has to pay the court fee of VND 900,000.

Mr. Duong Ngoc K, Ms. Duong Thi Th are exempt from the court fee. Refund to Mr. K the paid court fee advance of VND 1,162,000 according to the receipt No. AA/2015/0002411 dated July 4, 2017 of the Sub-department of Civil Judgment Enforcement of Lang Giang District.

From the effective date of the judgment and the judgment creditor applies for judgment enforcement in writing until the full repayment of all amounts, the judgment debtor must also bear the interest on the remaining debt, with the interest rate of 10% per year corresponding to the delayed time of enforcement.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7, 7a and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

The petitioner, the respondent, the person with related rights and obligations present at the trial may appeal the judgment within 15 days from the date of pronouncement of the judgment. Persons with related rights and obligations who are absent may appeal the judgment within 15 days from the date of receiving the judgment.


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Judgment no. 15/2018/HNGD-ST dated march 26, 2018 on marriage and family dispute

Số hiệu:15/2018/HNGD-ST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Huyện Lạng Giang - Bắc Giang
Field:Hôn Nhân Gia Đình
Date issued: 26/03/2018
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