1. Principles of division of property upon divorce
The division of property upon divorce is based on the general principle stipulated in the Law on Marriage and Family of 2014 of Vietnam as follows:
- The bisecting principle, but taking into account the following factors:
+ Circumstances of the family, husband and wife;
+ The contribution of husband and wife to the creation, maintenance and development of common property. Labor of husband and wife in the family is considered as labor with income;
+ 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;
+ Each spouse’s faults in the infringement of spousal rights and obligations.
Thus, it can be understood that in normal cases, each wife and husband will be entitled to half the value of the entire property.
However, the Court may also consider other factors such as faults of the parties, efforts to contribute assets,... to flexibly divide assets to suit the actual situation of each party.
- 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.
- Whose private property is owned by such person: except for private property entered into common property under the provisions of the Law on Marriage and Family.
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.
- 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.
2. Determination of common property and separate property of husband and wife
2.1. Identification of separate property
Separate property of husband and wife includes:
- Property that each person has before marriage;
- The property is separately inherited and donated during the marriage period;
- Property shall be divided separately between spouses according to the provisions of Articles 38, 39 and 40 of the Law on Marriage and Family of 2014, specifically:
+ During the marriage period, husband and wife have the right to agree to divide part or all of the common property (except for the case specified in Article 42 of the Law on Labor Law); if they cannot reach an agreement, they have the right to request the court to settle it.
+ In case of division of common property of husband and wife, the share of divided property, yields and profits arising from separate property of each party after the division of common property is separate property of husband and wife, unless otherwise agreed by husband and wife. The remaining undivided property remains the common property of the husband and wife.
- Assets serving the essential needs of husband and wife and other assets which in accordance with law are privately owned by husband and wife.
- In addition, property is formed from private property of husband and wife as well as private property of husband and wife.
2.2. Determination of common property of husband and wife
Article 33 of the Labor Law defines common property of husband and wife, including:
- Property created by husband and wife, income generated by labor, production and business activities, yields and income arising from separate property and other legal income during the marriage period
- Property inherited jointly by husband and wife or donated jointly
- Other property agreed by husband and wife is 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.
- 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.
- Other assets that have no basis to prove they are separate assets.
3. Division of common property of husband and wife in some cases
3.1. Division of property in case husband and wife live with their family (Article 61 of the Law on Marriage and Family)
In case husband and wife live with their family, the property will be divided as follows:
- If the property of husband and wife is not determined in the common property: the property will be divided based on the efforts to create, maintain and develop the common property as well as the common life of the family. If the husband and wife cannot reach an agreement, they shall request the court to settle it.
- If it is possible to determine in part: upon divorce, the property of the couple shall be extracted from that common property for division under the provisions of Article 59 of the Law on Marriage and Family.
3.2. Division of land use rights of husband and wife upon divorce (Article 62 of the Law on Marriage and Family)
- Land use rights being separate property of a spouse remain under his/her ownership upon divorce.
- For land that is common property, the rights will be divided as follows:
+ For agricultural land under annual crops or aquaculture, if both partners have the need and conditions to directly use the land, the land use rights shall be divided under their agreement. If they fail to reach agreement thereon, they may request a court to settle it according to Article 59 of this Law.
When only one partner has the need and conditions to directly use the land, that partner may continue to use the land but shall pay to the other the portion of the land use right value the latter is entitled to;
+ For agricultural land planted with trees annually, aquaculture together with households, upon divorce, the land use rights of husband and wife are separated and applied the principle of division as for agricultural land planted with trees annually, aquaculture
+ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use rights shall be divided according to Article 59 of this Law;
+ The division of the rights to use land of other categories must comply with the land law.
For husband and wife living with their family and sharing no land use rights with the latter, upon divorce, the interests of the partner who has no land use rights and does not continue to live with the family shall be settled according to Article 61 of this Law.
3.3. Division of common property of husband and wife put into business (Article 64 of the Law on Marriage and Family)
A spouse who is carrying out business activities related to common property has the right to receive that property and shall pay the other the property value that the latter is entitled to, unless otherwise prescribed by the business law.
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