Will separation of husband and wife terminate their marriage in Vietnam?

Will separation of husband and wife terminate their marriage in Vietnam?

Article 57 of the Law on Marriage and Family 2014 stipulates time of termination of marriage and responsibility to send divorce judgments or decisions as follows:

1. The marriage relation shall terminate on the date a court’s divorce judgment or decision takes legally effective.

2. The court that has settled a divorce shall send the legally effective divorce judgment or decision to the agency registering such marriage for recording in the civil status register; the divorced partners; and other persons, agencies and organizations as prescribed by the Civil Procedure Code and other relevant laws.

Thus, according to the above provisions in Vietnam, only when a marriage relationship terminates  on the date a court’s divorce judgment or decision takes legally effective. If you have just separated, it is not considered the end of the marriage.

What are principles of property settlement of husband and wife upon divorce in Vietnam? 

Pursuant to Article 7 of the Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP, there are regulations on principles of property settlement of husband and wife upon divorce as follows:

1. When a husband and wife divorce, they have the right to reach agreement among themselves on all issues, including the division of property. In case the husband and wife cannot reach an agreement but request, the Court must consider and decide on the application of the couple's property regime according to the agreement or the law, depending on the specific cases handled by the Court as follows:

a) In case there is no written agreement on the property regime of the husband and wife or the written agreement on the property regime of the husband and wife is declared completely invalid by the Court, the husband and wife's property regime shall apply according to the law to divide the property of husband and wife upon divorce;

b) In case there is a written agreement on the property regime of husband and wife and this document is not declared completely invalid by the Court, the contents of the written agreement shall apply to divide the property of husband and wife when divorce. For matters that are not agreed upon by husband and wife, or that the agreement is unclear or invalid, the corresponding provisions of Clauses 2, 3, 4, 5, Article 59 and Articles 60, 61, 62, 63 and 64 of the Law on Marriage and Family to divide the property of husband and wife upon divorce.

2. When resolving divorce, if there is a request to declare that the agreement on the husband and wife's property regime is invalid, the court shall consider and settle it simultaneously with the request for property division of the husband and wife upon divorce.

3. When dividing the common property of husband and wife upon divorce, the Court must determine whether the spouse has property rights and obligations towards the third party in order to include the third party in the proceedings as a spouse have related rights and obligations. In case a husband and wife have property rights and obligations towards a third party that they request to settle, the court must settle them when dividing the husband and wife's common property. Where husband and wife have obligations to a third party but the third party does not request settlement, the court shall guide them to settle by another case.

4. In case the statutory property regime of husband and wife is applied to divide the property of husband and wife upon divorce, the common property of the husband and wife is divided in principle, but taking into account the following factors to determine: Determine the proportion of property that the husband and wife are divided:

a) “Patients of the family and of spouses” means the status of a spouse's legal capacity, behavioral capacity, health, property, and ability to work and generate income after divorce as well as that of other family members in which the husband and wife have personal rights and obligations as well as property in accordance with the Law on Marriage and Family. The party facing more difficulties after the divorce is entitled to a larger share of assets than the other party or is given priority to receive the type of property to ensure the maintenance and stability of their life, but must be consistent with the actual circumstances of the spouse.

b) "The contribution of husband and wife to the creation, maintenance and development of the common property" is the contribution of separate property, income, family work and labor of the husband and wife in the family, maintenance and development of common property. A wife or husband who stays at home to take care of children and family but does not work is counted as an employee with income equivalent to that of a working husband or wife. The party with more effort to contribute will be shared more.

c) "Protecting the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income " means the division of common property of husband and wife must ensure allow spouses who are currently active in their profession to continue practicing their profession; husband and wife who are engaged in production and business activities may continue to produce and do business to generate income and must pay the other party the difference in property value. The protection of the legitimate interests of each party in production, business and professional activities must not affect the minimum living conditions of spouses and minor children, adult children who have lost their legal capacity to act. 

Example: A husband and wife have a common property which is a car, the husband is driving a taxi, worth VND 400 million, and a grocery store the wife runs a business with worth VND 200 million. When resolving divorce and division of common property, the Court must consider handing over groceries to the wife, and handing over a car to the husband so that they can continue their business and generate income. The husband who receives a larger portion of the property value must pay the wife a portion of the value of VND 100 million.

d) “The fault of each party in violating the rights and obligations of husband and wife ” is the fault of the spouses in violation of their personal rights and obligations, resulting in divorce.

For example: In case a husband commits domestic violence, unfaithfulness or property destruction, when settling divorce, the court must consider the husband's fault when dividing the husband and wife's common property to ensure protect the lawful rights and interests of the wife and minor children.

5. The value of common property of husband and wife and separate property of husband and wife shall be determined according to the market price at the time of first-instance settlement of the case.

6. When settling property division upon divorce, the Court must consider to protect the lawful rights and interests of the wife, minor children, adult children who have lost their civil act capacity or unable to work and have no assets to support themselves.

Example : When dividing a house which is common property and is the sole residence of husband and wife, in case it cannot be divided in kind, the Court shall consider and decide for the wife or husband to directly raise minor children, children with limited or incapacitated civil acts receive in kind and pay the value corresponding to the property divided to the husband or wife if the spouse so requests.

Thus, upon divorce, the spouse's property will be settled according to the above provisions in Vietnam.

Best Regards!