29/03/2023 11:25

What are the regulations on the common property division in same-sex marriage in Vietnam?

What are the regulations on the common property division in same-sex marriage in Vietnam?

Me and my boyfriend are both girls. We've been living together for 6 years, and now it's been determined that both of us no longer have feelings, so we agreed to "divorce". As far as I know, Vietnamese law does not recognize same-sex marriage, so do I need to divide assets with her after "divorce"? "Mrs An-HCMC, Vietnam"

Hello, Lawnet would like to answer the following:

1. Regulations on same-sex marriage in Vietnam

Currently, Vietnamese law does not recognize marriage between same-sex people, specifically as specified in Clause 2, Article 8 of the Law on Marriage and Family:

Article 8. Conditions for getting married

1. …

2. The State shall not recognize marriage between persons of the same sex.

According to Decree 82/2020/ND-CP, same-sex people marrying each other are no longer penalized.

Thus, the State no longer prohibits people of the same sex from marrying but simply "does not recognize" this marriage relationship. This means that same-sex people can hold weddings and live together as husband and wife, but they cannot carry out marriage registration procedures at competent State agencies.

2. What are the regulations on the common property division in same-sex marriage?

As mentioned above, it is not against the law to hold weddings and live together among same-sex people. So, in case two people of the same sex live together and there is a problem leading to "divorce", how will the property dispute between the two people be resolved?

For same-sex marriage, because the "husband and wife" relationship is not recognized by the law, the relationship between two people in a same-sex marriage is just a normal civil relationship. Therefore, when a dispute occurs over property, it will not fall within the scope of the Law on Marriage and Family, but will be resolved according to the provisions of the Civil Code.

Assets arising from transactions performed by both parties, or individual assets of each contributing to the common property, or the property agreed to be incorporated into the common property, shall be considered as multiple ownership property as prescribed in Article 207 of the Civil Code 2015:

Article 208. Establishment of multiple ownership rights

Multiple ownership rights shall be created as agreed by the owners or in accordance with provisions of the law or in accordance with customary practice.

In addition, according to Article 219 of the 2015 Civil Code, common property regulations are as follows:

Article 219. Division of multiple ownership property in Vietnam

Where multiple ownership property is divisible, each owner has the right to request the property to be divided. If the property must be maintained within a certain period of time as agreed by all owners or as prescribed by law, each owner only has the right to request the property to be divided upon expiry of that period. Where the property is not able to be divided in kind, it shall be valued in terms of money for the purposes of division, unless otherwise agreed.

Where a person requests one of the owners of multiple ownership property to fulfill a payment obligation and such owner does not have private property or sufficient private property to make the payment, the requesting person has the right to request that the multiple ownership property be divided in order to receive monetary payment and such person shall be entitled to participate in the division of the property, unless otherwise provided by law.

If the shares of ownership rights are not able to be divided in kind or if such a division is opposed by the remaining owners, the requesting person has the right to request the owner with the obligation to sell to sell its share of ownership rights in order to fulfill the payment obligation.

For property under common ownership, the joint owner has the right to request the division of the property; if it cannot be divided in kind, the joint owner who requests the division has the right to sell his/her share of the ownership rights.

Thus, in the case that you and your lover live together for 6 years, it is difficult to avoid generating common property together. Therefore, it is possible for you to ask your lover to divide the property. However, you can only claim a division of jointly owned property; specifically, the assets arising from the transactions that two people make together, either merging the separate property of each person into the common property or merely their agreement on a certain property to be incorporated into the common property.

Best regards!

Le Thi Phuong Ngan
196


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