How to divide the common property of husband and wife after divorce in Vietnam?

The common property is determined according to Article 33 of the Law on Marriage and Family 2014 of Vietnam.

Article 33. Common property of husband and wife

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.

The principles of property settlement of husband and wife upon divorce are as follows:

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.

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.

This content is summarized by Judgment 34/2018/HNGĐ-ST dated March 7, 2018 on divorce, child custody disputes, and property division upon divorce.

Summary of the verdict:

Ms. Nguyen Thi V (wife) married Mr. Trinh Xuan M in 1995.

Property: When the two got married, Mr. and Mrs. Trinh Xuan B (Mr's biological parents) gave him a piece of land of 334m2. In 2012, the couple built a level 4 house and ancillary works on the above land area.

Here, the common property is determined by the Court to include the land that Mr. M's parents gave him and his wife and the property that the person has created by himself during the marriage, which is a level 4 house and other works. side two people have built after marriage.

About common children: The two live together and have 3 children, respectively, Trinh Thi V (1996), Trinh Thi H (2001) and Trinh Xuan V (2006).

Court settlement and commentary:

Firstly, the principle of division of common property is as follows:

According to Clause 1, Article 59 of the Law on Marriage and Family 2014, common property will be divided according to the following principles:

+ Divide property according to the agreement of the parties.

+ Divide property according to the provisions of law.

Priority will be given to division according to the agreement of the parties, in case the two parties cannot agree to ask the Court to settle, the court will divide this common property.

If the couple's property can be agreed upon and only required to be recognized by the Court, they will only have to pay the first-instance civil court fee: 300,000 VND. If they cannot reach an agreement and request the court to divide, they must pay court costs according to the value calculated based on the value of the divided property.

In this case, because the two people asked to divide the property, in addition to 300,000 first-instance civil court costs, Ms. V had to pay an additional VND 7,399,600 and Mr. M had to pay VND 8,081,100 in court fees for asking the Court to divide the property.

See details of court costs in the list of Court fees and charges issued together with Resolution 326/2016/UBTVQH14

Secondly, the common property of husband and wife will be divided in half, but also consider a number of factors as follows:  based on the circumstances, the contribution of each party to that common property, the fault of each party to divorce.

Clause 2, Clause 3, Article 59, Law on Marriage and Family 2014

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.

The amount of property of the two people was divided in two, but the Court was based on the land that the two were living in, which was the origin of Mr. V's parents, so when dividing, he also considered giving Mr. M a larger share.

In order to facilitate the use and not to lose the use value of the property, it attached to the land will be divided and assigned to the party with the land use right to own the part of the property attached to that land area, the difference in assets will be returned by the other party in cash.

The court divided as follows:

Give Ms. Nguyen Thi V the right to own the kitchen area worth 24,854,000 VND; barns with roofs of cement with a value of 12,573,000 VND; iron gate worth 1,725,000 VND; corrugated iron roof without walls (2x3.4m) worth VND 2,040,000 and the right to use land area of ​​167 m2 worth VND 66.8 million. Total: 107,992,000 VND

Mr. Trinh Xuan M is assigned the right to own 01 tiled roof house worth VND 132,476,000; corrugated iron roof (2.3 x 3.4m) worth VND 2,346,000 and the right to use land area of ​​167 m2 worth VND 66.8 million. Total: 201,622,000 VND

The difference in assets Mr. Trinh Xuan M is obliged to hand over to Ms. Nguyen Thi V the amount of 40,000,000 VND (Forty million VND).

The difference in assets of Mr. M compared to Ms. V is nearly 100,000,000 VND, but Mr. M only has to hand over to V 40,000,000 VND.

How the court divided:

+ Split the land: 167m2 each person

+ The couple's house is built, but Mr. M gets more.

Can't split the house in half and give each person half as that devalues ​​the house, instead the Court divides each person half of the plot of land as it is easier to split in half and it doesn't lose the value of the house and land plot.

Instead of paying Ms. V nearly the difference of nearly 100,000,000 VND, he only paid 40,000,000 VND (this 40,000,000 million is considered the difference in his enjoyment of the house and nearly 60,000,000 VND). The rest he gets more money because this is the land his parents gave him).

In conclusion, the division of common property of husband and wife upon divorce can be resolved by agreement of husband and wife or by way of court.