Recognition of separate property during marriage in Vietnam

According to the Law on Marriage and Family 2014 of Vietnam(Law on Marriage and Family 2014) on the property regime of husband and wife:

Firstly, before marriage, the couple can choose the property regime according to an agreement (this agreement must be made before marriage in the form of a notarized or authenticated document). If the parties do not agree, the property regime according to the law will apply. (Based on Articles 28, 47)

Secondly, according to Clause 1, Article 33, the common property of husband and wife includes:

“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."

Thirdly, according to Article 43, the husband and wife's separate property includes:

"1. Separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her under Articles 38,39 and 40 of this Law; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.

2.  Property created from separate property of a husband or wife is also property of his/ her own. Yields and profits arising from separate property during the marriage period must comply with Clause 1, Article 33, and Clause 1, Article 40, of this Law."

Fourthly, when a husband and wife have a dispute, if they cannot provide grounds to prove that the disputed property is separate property, such property shall be considered as common property (based on Clause 3, Article 33).

Fifthly, husband and wife have the right to enter or not to import separate property into common property (based on Clause 1, Article 44).

Thereby, before men and women get married, they need to be careful and skillful in determining which property regime will apply, determining what is common property, what is separate property, and whether to import or not to import property. From that, ensuring their rights and interests when the marriage relationship ceases, as well as the interests of both during the marriage period: separate debt payment does not affect the other party's private property, contributing to family economic security...

Typically, in the judgment 38/2018/DS-PT dated January 26, 2018 by the People's Court of Ca Mau province, the appellate trial of the case was:

Mr. T and Ms. Huynh Bich T got married in 1984. In 1987, Mr. T transferred the land of Mrs. 7 Giang and was granted a certificate of land use right by the People's Committee of Tran Van Thoi district with the entire land area in 1996. On October 21, 2016, when the Civil Judgment Enforcement agency of Tran Van Thoi district verified Ms. T's judgment execution conditions, Ms. T declared the above land to ensure the execution. judgment for her private debt, but he disagreed because it was his own property. Therefore, Mr. T filed a lawsuit to request the Court to recognize the above 16,090m2 of land as his private property.

The People's Court of Ca Mau province has decided to uphold the first-instance judgment and not accept Mr. T's petition to claim the above-mentioned land area as private property.

Considering the circumstances of the case and the law provisions on the property regime of husband and wife, the Court's decision is completely appropriate. By:

Firstly, Mr. T and Mrs. T got married in 1984. In 1987, Mr. T received the transfer of Mrs. 7 Giang's land. Therefore, this land is transferred during the marriage of Mr. T and Mrs. T, but according to the provisions of Clause 1, Article 33 of the 2014 Law on Family Marriage: “…Land use rights acquired by husband and wife after being marriage is the common property of husband and wife, except where the spouses are separately inherited, given separately or acquired through transactions with separate property.”

Secondly, Mr. T also has no evidence to prove that this is his own property, there is no evidence to prove that this is the land purchased from the gold he was given to him by his parents as declared.

In conclusion, when deciding to get married, the parties need to carefully consider the issue of property, even though it is a sensitive issue. However, it is necessary to ensure the rights and interests of the parties in the marriage as well as when the marriage relationship is terminated.

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