When divorce, can me and my husband agree that my husband will pay the debt without consent of bank in Vietnam?

When divorce, can me and my husband agree that my husband will pay the debt without consent of bank in Vietnam?

Pursuant to Article 60 of the Law on Marriage and Family 2014 on settlement of property rights and obligations of husband and wife toward a third party upon divorce:

1. Property rights and obligations of husband and wife toward a third party remain effective after divorce, unless otherwise agreed by husband and wife and that party.

2. When a dispute arises over property rights and obligations, the settlement of such dispute must comply with Articles 27, 37 and 45 of this Law and the Civil Code.

Pursuant to Article 370 of the 2015 Civil Code provides for transfer of civil obligations as follows:

1. An obligor may transfer a civil obligation to a subrogatee of the obligor with the consent of the obligee, except where the obligation is personal to the obligor or where the law provides that the obligation may not be transferred.

2. Upon a transfer of the obligation, the subrogatee of the obligor shall become the obligor.

Because this is a debt in the marriage period, that is, the property obligation of the husband and wife in Vietnam. So when you and your husband want to transfer the debt to your husband, you must have the consent of the bank.

When Court considers the recognition of consent to divorce for the spouses, the Court does not invite the person with related rights and obligations in Vietnam.

Pursuant to Clause 4, Article 68 of the 2015 Civil Procedure Code stipulates:

4. The persons with related interests and/or obligations in civil lawsuits are those who neither initiate lawsuits nor are sued, but the resolution of the civil lawsuits is related to their interests and/or obligations and, therefore they themselves, or other involved parties, request to include them in the proceedings in the capacity as the persons with related interests and/or obligations and such requests are accepted by courts.

 Where the resolution of a civil lawsuit is related to the interests and/or obligations of a person but no one requests to include him or her in the proceedings in the capacity as the persons with related interests and/or obligations, the Court shall have to include that person in the proceedings in the capacity as the person with related interests and/or obligations.

According to this Aeeticle in Vietnam, the bank is the person with related rights and obligations, but the Court does not include them in the proceedings. This is considered a serious breach of civil process.

According to Article 371 of the 2015 Civil Procedure Code, on appeal and appeal against civil matter-resolving decisions as follows:

Petitioners and persons with interests and duties relevant to civil matter resolution shall be entitled to appeal, the procuracies of the same level and immediate superior procuracy shall be entitled to appeal against civil matter-resolving decisions in order to request the immediate superior Court to re-settle them according to the appellate procedures, except for those prescribed in clause 7 Article 27, Clauses 2 and 3, Article 29 of this Code.

According to this Article, if the agreement between you and your wife affects the rights of the bank, as a person with related rights and obligations, the bank can appeal according to appellate procedures. Your husband does not have the right to appeal according to the appellate procedure because this is an agreement between two people, the recognition of the agreement of two people can only affect the interests of the bank, so the bank has right to appeal.

As analyzed above, if the bank appeals, the Court of Appeal will cancel the recognition decision because there is a violation of procedural activities. And the part of the debt agreement paid by your husband will also be canceled if the bank does not agree to this agreement in Vietnam.

What is division of land use rights of husband and wife upon divorce in Vietnam?

Pursuant to Article 62 of the Law on Marriage and Family 2014 stipulating division of land use rights of husband and wife upon divorce as follows:

1. Land use rights being separate property of a spouse remain under his/her ownership upon divorce.

2. The division of land use rights being common property of husband and wife upon divorce shall be divided as follows:

a/ 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;

b/ When husband and wife share the right to use agricultural land under annual crops or aquaculture with their household, upon divorce, the couple’s portion of the land use right shall be separated and divided under Point a of this Clause;

c/ 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;

d/ The division of the rights to use land of other categories must comply with the land law.

3. 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.

Best Regards!