28/07/2022 10:25

Are all marital debts a joint debt in Vietnam?

Are all marital debts a joint debt in Vietnam?

Marriage is when a man and a woman establish a relationship with each other according to the provisions of law. However, when living together, there are too many things that happen that both of them can't handle, then divorce is a solution to escape.

And from here, many problems arise during a divorce such as division of assets, children, debt, etc. The following content will analyze whether all debts during the marriage period are common debts or not?

As for property, it is usually divided equally between both husband and wife, but taking into account a number of factors as prescribed in Clause 2, Article 59 of the Law on Marriage and Family 2014 of Vietnam

Article 59. 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.

As for debt , not every debt formed during the marriage is a joint obligation of the couple.

Specifically, in the judgment 26/2019/HNGĐ-PT on the dispute over property division after the divorce on May 9, 2019 of the People's Court of Thanh Hoa province with the following contents:

Mr. T and Ms. P got married. During the divorce period, Mr. T was often away from home because Mr. T was in the army, the unit was stationed far away, and she stayed at home to teach and raised two children alone, so he borrowed from some colleagues and acquaintances as follows:

+ Ms. N: 12,000,000 VND to raise children; (1)

+ Borrow an amount of VND 50,000,000 to repair the house;

+ Ms. X: 1,000,000 VND to pay for her children's education; (2)

+ Loan: VND 14,000,000 to take care of the family, pay for school and rent accommodation for children; (3)

+ Loan to Ms. C: 2,000,000 VND; Mr. K: 1,000,000 VND; Ms. L1: 2,500,000 VND; Ms. L2: 3,700,000 VND; Ms. T: 4,500,000 VND to pay for school fees and buy eyeglasses for her children. (4)

Borrowed from his biological father, Mr. D 01, only gold; borrowed from her biological mother, Mrs. Y, in the amount of VND 5,000,000; Her sister's loan is H in the amount of VND 5,000,000.

Total debt is 103,900,000 VND.

Ms. P asked the Court to settle and force Mr. T to return half of the money she borrowed during the marriage.

The court ruled:

Pursuant to Article 37 of the 2014 Law on Marriage and Family of Vietnam, the above debts, these are all loans that Ms. P has borrowed during her marriage before her divorce from 2007 to 2016. The Court only accepts debts (1), (2), (3) and (4) since it is done to meet the essential needs of the family, husband and wife have a joint responsibility. Therefore, he is responsible for paying half of the above debt, equivalent to VND 20,350,000.

As for the debt she borrows from her family and to repair the house, she is responsible for paying those debts because it is not considered to serve essential needs.

Essential needs are the normal daily living needs for food, clothing, accommodation, study, medical examination and treatment and other common daily needs that are indispensable for the life of each person, each family.

In conclusion, there is no rule that all debts formed during marriage are joint debts. There are only some debts that fall under joint liability specified in Article 27 of the 2014 Law on Mariage and Family (debts incurred to meet essential needs, debts arising from a common business case, or debts that are general obligations under Article 37), Law on Marriage and Family 2014 such as obligations arising from transactions established by husband and wife by mutual agreement, obligation to compensate for damage for which husband and wife are jointly responsible, according to the law, etc. considered a general debt.

Duc Phong

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