If I am a housewife, can the property be divided to me upon divorce in Vietnam? If I lose my marriage certificate, can I request settlement of divorce in Vietnam?

If I am a housewife, can the property be divided to me upon divorce in Vietnam?

Please let me know: I got married 5 years ago. Having given birth to a 2-year-old boy, I am only a housewife, and all expenses in the family are covered by my husband's work. But now we are not happy and are about to get a divorce. So can I divide the property?

Reply:

According to the provisions of the Law on Marriage and Family 2014, 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.

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. When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.

Thus: Based on the provisions cited above, the income of husband and wife arising during the marriage will in principle be determined as the common property of husband and wife. Unless the husband and wife have other legal agreements or the husband and wife have grounds to prove that it is separate property in Vietnam.

Upon divorce, if the husband and wife's property regime is in accordance with the law in Vietnam, the settlement of property shall be agreed upon by the parties; if no agreement can be reached, at the request of the spouse or husband and wife, the court shall settle it in accordance with law.

In case the property regime of husband and wife is agreed upon, the settlement of property upon divorce shall be applied according to such agreement in Vietnam; if the agreement is not complete and clear, the provisions of law shall apply.

According to this Article, common property shall be divided into two, taking into account the following factors:

a/ Circumstances of the family, husband and wife;

b/ Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;

c/ 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;

d/ Each spouse’s faults in the infringement of spousal rights and obligations.

Thus: Based on the above evidences in Vietnam, it can be determined that the labor of the wife and husband in the family is considered as an income worker.

On the other hand, according to the provisions of Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP, a spouse who stays at home to take care of children and family but does not work is counted as an employee with income equivalent to income of husband or wife working.

Thus: In case the wife (or husband) stays at home, taking care of the family and children, it is still counted as having income equivalent to the income of the working person in Vietnam. Therefore, it is still determined that there are contribution to the creation, maintenance and development of common property in the family equivalent to that of a working husband (or wife).

Therefore: If you are only a housewife, you will still be identified as an income earner and have contributed to the creation, maintenance and development of the common property in the family like your husband. So if you and your wife live together unhappyly and lead to a divorce, you still have the right to divide the common property of the couple created during the marriage according to the agreement of the couple or according to thedecision of the Court in Vietnam.

If I lose our marriage certificate, can I request settlement of divorce in Vietnam?

Hello, I am Quang Huan, my wife and I have been married for 3 years, in the past 3 years, my wife and I have had many conflicts. My husband and I both wanted a divorce to free each other, but we lost our marriage certificate. I was told that in order to get a divorce, a marriage certificate is required. So please ask: If I lose our marriage certificate, can I get a divorce?

Reply:

In Clause 1, Article 51 of the Law on Marriage and Family 2014 stipulates:

1. Husband or wife or both has or have the right to request a court to settle their divorce.

According to this Article, divorce includes divorce by mutual consent and divorce at the request of one spouse. In which, divorce by mutual consent is a case where both husband and wife voluntarily agree to divorce. Article 55 of the Law on Marriage and Family provides for divorce by mutual consent as follows:

When both spouses request a divorce, a court shall recognize the divorce by mutual consent if seeing that the two are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children. If the spouses fail to reach agreement or have reached an agreement which -fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.

In order to get a divorce from the court in Vietnam, the couple must have the following documents:

– Application for consent for divorce (signed by both spouses). This form can be handwritten or sampled at the Court.

– Copy of household registration book, identity card or passport of the couple (certified)

– A copy of the child’s birth certificate (certified, if there is a request to resolve the division of children)

- Marriage registration certificate (original). In case the marriage registration certificate is lost, you must go to the civil status office where the marriage has been registered to apply for a copy and clearly state in the divorce file the reason for not having the original marriage certificate.

So, for the case of your husband and wife who want to divorce, because you have made some marriage registration papers, you can go to the civil status registration place where the marriage has been registered for the two of you to get a copy of the marriage certificate. In this case, if there is a copy of the marriage registration certificate, the court will still handle it for you in Vietnam.

Upon divorce, do I enjoy the property given to me by my parents-in-law in Vietnam? 

During the marriage, my husband's parents gave me and my wife a house. The house has also been transferred to my husband's name. Currently, my husband and I are preparing for divorce because he has adultery, so can I enjoy the property that is the house that was given to me by my parents-in-law during the marriage?

Reply:

Article 33 of the Law on Marriage and Family 2014 provides:

1. 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.

2. 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.

3. When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.

This regulation can be understood, if the husband's parents only record that the house is for boys only, the daughter-in-law will not be entitled to it. If the gifting does not record this or there is no specific basis for the gifting separately, the property will be considered as the common property of the couple because it is the property formed during the marriage in Vietnam.

Therefore, when you divorce, if it is determined that this is your husband's separate property, this house still belongs to your husband, you are not entitled to divide the property. In case your husband cannot prove that it is separate property, it will be determined as common property of the couple, then the house will be divided according to the principle of division in Vietnam.

Best regards!