23/07/2022 08:56

When the wife borrows money to repair the common house, the husband has to pay after divorcing in Vietnam?

When the wife borrows money to repair the common house, the husband has to pay after divorcing in Vietnam?

When divorce, in addition to disputes over child custody or division of common property, the division of joint debt is not a strange issue. Determining which debt is a joint debt and which is a separate debt is not easy. For example, when determining whether the debt owed by a spouse to repair a house is a joint debt or a separate debt?

Specifically in Judgment 26/2019/HNGĐ-PT  dated May 9, 2019 on the dispute over property division after divorce of the People's Court of Thanh Hoa province, according to which:

Ms. Hoang Thi P and Mr. Chung Van T have been divorced and divided by the court in 2017. However, the debt has not been resolved because Ms. P could not provide supporting documents. Now that she has collected documents and evidence related to the debt, she asked the Court for a joint debt between her and Mr. T, specifically.

During her divorce, she borrowed from some acquaintances: from Ms. Tran Thi N 12,000,000 VND to raise her children and 50,000,000 VND to repair the house. Borrowing Ms. Do Thi X 1,000,000 VND to pay for her children's schooling. Borrowing from the Union of Primary School of Commune T 14,000,000 VND to take care of the family, pay school fees and rent a boarding house for children…

The court has declared that only loans for raising children, paying for children's education, and essential household expenses are common debts, except for the money Ms. P borrowed to repair the house, the court has determined that it is not a common debt. for reasons:

“ Ms. P borrowed VND 50,000,000 from Ms. N, the loan of Mr. T is completely unknown, the purpose of the loan is to repair the house so this is not a loan for the family's essential needs. According to Clause 20, Article 3 of the Law on Marriage and Family of Vietnam, “Essential needs are the usual daily needs for food, clothing, accommodation, study, medical examination and treatment, and other normal daily needs that are indispensable for a family. the life of each person, each family”. Therefore, there is no basis to force Mr. T to have joint obligations with Ms. N's debt."

The Law on Marriage and Family 2014 of Vietnam regulates this issue as follows:

Article 37. Common property obligations of husband and wife

"Husband and wife have the following common property obligations:

1. Obligations arising from transactions established under their agreement, obligations to pay damages under their joint liability as prescribed by law;

2. Obligations performed by a spouse in order to meet the family’s essential needs;"

Article 45. Separate property obligations of husband and wife

"A spouse has the following separate property obligations:

1. The obligations he/she has before marriage;

2. The obligations arising from the possession, use and disposition of his/her separate property, other than the obligations arising from the preservation, maintenance and repair of his/her separate property under Clause 4, Article 44 or Clause 4, Article 37 of this Law;

3. The obligations arising from transactions established and made by himself/herself not for meeting the family’s needs;

4. The obligations arising from his/her illegal acts.”

Therefore, according to article 37 above, both husband and wife have to have joint obligations only for the debt made by the "spouse or husband to meet the essential needs of the family". As in the case of the above judgment, home repair is considered not an essential need of the family and cannot be identified as a joint debt for the husband and wife to jointly pay.

However, if considering Article 45 above, "Obligation arising from a transaction established and performed by one party, not for the needs of the family" is considered a separate obligation (separate debt) of a spouse. Seeing that the money borrowed by the wife to repair the house is to serve the needs of the family (the whole family lives together), so it is not in the case of being determined as a separate debt so that whoever borrows it, that person has to pay.

So it is clear that the law does not have a consensus between determining when it is a joint debt and when it is a separate debt of husband and wife. Since then, leading to a number of court judgments on the determination of common and separate debts of husband and wife are not really convincing.

Sang Nguyen

Please Login to be able to download

  • Address: 17 Nguyen Gia Thieu, Vo Thi Sau Ward, District 3, Ho Chi Minh City
    Phone: (028) 7302 2286 (6 lines)
    E-mail: info@lawnet.vn
Parent company: THU VIEN PHAP LUAT Ltd
Editorial Director: Mr. Bui Tuong Vu - Tel. (028) 7302 2286
P.702A , Centre Point, 106 Nguyen Van Troi, Ward 8, Phu Nhuan District, HCM City;