If I rely on the donation contract, can I confirm separate property of husband and wife in Vietnam?

If I rely on the donation contract, can I confirm separate property of husband and wife in Vietnam?

Question: Dear, I was given a land plot by my parents and put my name on the certificate of land use right. However, now I have my family. Can this land be considered as my separate property during the marriage? Thank you.

Reply:

According to Article 43 of the Law on Marriage and Family 2014, the separate property of husband and wife is as follows:

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.

Based on the above regulations in Vietnam, the plot of land that you received was donated by your parents, and it happened during the marriage. To establish that it is your own property, your parents need to make a donation contract and the recipient in that contract only has your name.

What is determination of common property and separate property of husband and wife during marriage in Vietnam?

Question: I am getting married soon and would like to learn a little bit about the Law on Marriage and Family. However, there are a few questions I don't quite understand that I hope you can answer. Specifically: What is determination of common property and separate property of husband and wife during marriage? Hope you can advise me, thank you very much

Reply:

1/ Common property of husband and wife

Clause 2, Article 33 of the Law on Marriage and Family 2014 stipulates: 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.

According to the provisions of Clause 1, Article 33 of the Law on Marriage and Family 2014 and Article 9, Article 10 of Decree 126/2014/ND-CP, 

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.

Article 9. Other lawful incomes of husband and wife in the marriage period

1. Bonuses, lottery prizes and allowances, except the case prescribed in Clause 3, Article 11 of this Decree.

2. Property a spouse has the right to establish ownership in accordance with the Civil Code for objects which are ownerless, buried, hidden, sunk, dropped on the ground or left over out of inadvertence, stray cattle or poultry and raised aquatic animals.

3. Other lawful incomes as prescribed by law.

Article 10. Yields and profits from separate property of husband and wife

1. Yields from separate property of a spouse means natural produces he/she gains from his/her separate property.

2. Profits from separate property of a spouse means the profits he/she earns from the exploitation of his/her separate property.

For property that is common property during the marriage, the possession, use and disposition of common property by husband and wife will be done according to the agreement of the husband and wife in Vietnam.

2/ Separate property of husband and wife

According to the provisions of Article 43 of the Law on Marriage and Family 2014 and Article 11 of Decree 126/2014/ND-CP, the separate property of husband and wife during the marriage 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.

Article 11. Other separate property of husband and wife prescribed by law

1. The economic right to intellectual property objects as prescribed by the law on intellectual property.

2. Property under the separate ownership of a spouse according to the judgment or decision of a court or another competent agency.

3. Allowance or incentives receivable by a spouse as prescribed by the law on preferential treatment toward persons with meritorious services to the revolution; other property rights associated with the personal identification of a spouse.

With regard to property being the private property of each party, each spouse has right to possess, use and dispose of their own property to serve their own needs in Vientam.

In what cases is division of common property during the marriage invalid in Vietnam? 

Please ask the following question: In what cases is division of common property during the marriage invalid? Hope to get a response soon. Sincerely thank!

Reply:

In Article 42 of the Law on Marriage and Family 2014, there are provisions on invalidated common property division during the marriage period, including:

Common property division during the marriage period shall be invalidated when:

1. It seriously harms the family’s interests; or lawful rights and interests of minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves;

2. It aims to shirk the following obligations:

a/ Raising and support obligations;

b/ Damages payment obligations;

c/ Payment obligations when declared bankrupt by a court;

d/ Debt payment obligations;

dd/ Tax payment obligations or other financial obligations toward the State;

e/ Other property obligations as prescribed by this Law, the Civil Code and other relevant laws.

Best Regards!