The Law on Marriage and Family has regulations governing the common property regime as well as the right to dispose of common property of husband and wife.
What is the commonwealth of husband and wife?
Article 33 of the Law on Marriage and Family 2014 stipulates: "Common property of husband and wife includes property created by husband and wife, income generated by labor, production and business activities, profits and gains arising from separate property and other lawful income during the marriage period, except for the case specified in Clause 1, Article 40 of the Law on Labor; property jointly inherited by husband and wife and other property agreed by husband and wife as common property."
Thus, the land use rights acquired by the spouses after marriage are the common property of the spouses, unless otherwise agreed.
Right to dispose of common property of husband and wife
Article 35 of the Law on Marriage and Family of 2014 and Article 13 of Decree 126/2014/ND-CP stipulates as follows:
- The possession, use and disposition of common property shall be agreed by husband and wife.
- The disposition of the following common property shall be agreed in writing by husband and wife:
+ Real Estate;
+ Movable assets which are required by law to be registered for ownership;
+ Assets which are the major income-generating source for the family.
In case the spouse establishes or performs a transaction related to common property to meet the essential needs of the family, it shall be deemed to have the consent of the other party, unless the written agreement mentioned above is requested.
If the spouses dispose of the common property without a written agreement, the other party has the right to request the court to declare the transaction invalid and resolve the legal consequences of the transaction invalid.
However, the Court still recognizes that contracts with third parties are effective in some cases. Specifically, in the Judgment on the dispute over the land use right transfer contract No. 60/2019 /DS-PT adjudicated by the People's Court of Binh Thuan Province, Vietnam with the following contents:
"Mr. Mang P said that the area of 7,488m2 of land in parcel No. 12, map sheet No. 30, located in Quarter M, Ward MN, PT City, is the common property of Mr. Mang P and Mrs. T. In 1989, Mrs. T arbitrarily transferred the above-mentioned land area to Mr. C, Mr. P and the children did not know. By the year 2000, Mr. P had only known and had a complaint or dispute. The plaintiff requests the cancellation of the land use right transfer transaction between Mrs. T and Mr. C.
Mr. C and Mrs. M said that: In 1989, Mr. and Mrs. received the transfer of land use rights of 3,000m2 of Mrs. T and Mr. P. Then, in the process of management and use, he/she further explored 4,488m2 of land into a 7,488m2 land as currently. When the two parties transferred the land, Mr. P knew because Mr. P was the one who gave Mr. C the title deed issued by the old regime. The two parties have made a handwritten paper called "land acquisition paper" to record the transaction. Mrs. T signed the paper and Mr. L is the son of Mr. P, Mrs. T, wrote and signed on behalf of Mr. P on this paper, Mrs. T also acknowledged that the money for the sale of land she used for the purpose of family expenses. Therefore, he/she does not agree with the lawsuit request of Mr. P.”
The court found: Immediately after receiving the transfer in 1989, Mr. C cut down all coconut trees on the land, and in 1990, Mr. C's family built a fortified house and built a anchovy oven on the land to do business. Meanwhile, the distance from this land to Mr. P's house is not far. Therefore, Mr. P's testimony that she did not know Ms. T was transferring the land to Mr. C was unfounded for acceptance.
The Court has applied the Law 04/2016/AL to recognize the transfer of land use rights between Mrs. T and Mr. C: "In case the land house is a common property of the husband and only one person signs the contract to transfer the land house to another person, the other person does not sign the contract; if there are sufficient grounds to determine that the transferor has received enough money as agreed, the person who does not sign the contract knows and uses the money to transfer the land house; the transferee has received and managed and used the land house publicly; if the person who does not sign the contract knows without any objection, it must be determined that the person agrees with the transfer of the land house."
In addition, according to the provisions of Clause 2, Article 133 of the Civil Code in 2015 of Vietnam also stipulates: "In case a civil transaction is invalid but the property has been registered at a competent state agency, then it is transferred by another civil transaction to a third person and this person based on that registration establishes and performs the transaction, the transaction is not invalidated."
It can be seen that, not when the spouse arbitrarily disposes of the common property, transactions with third parties are invalidated. The court will recognize the transfer transaction based on the fact that the person who is not signed in the contract knows and uses the money to transfer the house and land; whether the transferee of land use rights is an immediate person and is protected under the provisions of the law.