The agreed matrimonial property regime in Vietnam

In Vietnam, prenuptial agreements once existed. During the French colonial period, prenuptial agreements were stipulated in the North Vietnamese Civil Code of 1931, the Central Vietnamese Civil Code of 1936, and in Southern Vietnam: prenuptial agreements were recognized in the Law on Marriage and Family of 1959, the Southern Vietnamese Civil Code of 1972. The prenuptial agreements recognized in Vietnam during the aforementioned period were explained from the perspective of being influenced by French law, not originating from practical life needs in the matrimonial property relationships that needed resolution. After the August Revolution of 1945, no legal provisions mentioned prenuptial agreements. The Law on Marriage and Family of 1959 only recognized joint property of spouses, not acknowledging separate property of the spouses. The Law on Marriage and Family of 1986 recognized that spouses had joint property while also acknowledging that spouses could have separate property.

Based on the inheritance and development of the provisions of the Law on Marriage and Family of 1959 and the Law on Marriage and Family of 1986, the Law on Marriage and Family of 2000 did not regulate prenuptial agreements. Regarding matrimonial property regime, the Law on Marriage and Family of 2000 only recognized statutory property policies, which applied to all legally recognized marital relationships. To overcome the shortcomings and limitations in the provisions of the Law on Marriage and Family of 2000 in general and the provisions on matrimonial property regime in particular, the Law on Marriage and Family of 2014 amended the old provisions and supplemented some new ones. Among the new points of the Law on Marriage and Family of 2014, the property policies of spouses by agreement were officially recognized in our marital and Law on Marriage and Family for the first time. Thus, according to the provisions of the Law on Marriage and Family of 2014, there no longer exists a unique property policy recognized as the statutory property policy, but now it also recognizes property policies by agreement. This regulation is breakthrough and innovative, allowing spouses to freely agree, decide, and determine their property before marriage according to their conditions and circumstances.

1. Agreement on establishing matrimonial property regime in Vietnam

Although prenuptial property policies have been practically applied in many countries, there are still different views related to this institution. Many argue that nothing kills marital romance like a prenuptial agreement. For truly loving couples, marriage is for bonding and sharing precious things like life, body, children, and not just money. On the other hand, if two people come together without considering a prenuptial agreement, it is likely that the marriage will be happier and longer-lasting. However, there is an opposite view that prenuptial agreements reduce the rate of divorce as they help couples overcome financial disagreements from the start; talking about money before marriage is not easy but helps avoid future troubles and limits both financial and emotional damages that a divorce (if it must occur) brings. Additionally, many opinions also suggest that people with significant assets and those marrying for the second time should consider a prenuptial agreement, and a person should consider a prenuptial agreement before marriage if they own a business, real estate, expect an inheritance in the future, have higher income compared to the other person, have children from previous marriages, or have elderly parents to support.

Thus, choosing and establishing agreed matrimonial property regime is the right of spouses recognized by the Law on Marriage and Family in Clause 1, Article 28 of the Law on Marriage and Family of 2014. Statutory matrimonial property regime are no longer the only, first priority policies applied to matrimonial property relations but a reserve solution applied in cases where spouses do not choose to apply property policies by agreement or have an agreement on property policies but the agreement is declared invalid by the court according to the provisions of the Law on Marriage and Family (Article 7, Decree No. 126/2014/ND-CP).

1.1. Conditions of Form

According to the provisions of Article 47 of the Law on Marriage and Family 2014, the agreement to establish matrimonial property regime must comply with formal conditions. Specifically:

"In the case where two parties marry and choose property policies by agreement, this agreement must be made before marriage in the form of a notarized or authenticated document. The matrimonial property policy by agreement is established from the day of marriage registration."

In terms of form, the agreement to establish matrimonial property regime is an expression of the will, aspiration, rights, and responsibilities of spouses regarding property issues. Therefore, this agreement must be made in writing and notarized or authenticated. Having the agreement in writing and signed by both spouses is not enough; legally, this document is based on an agreement, and whether the agreement is carried out depends on the voluntary respect and responsibility of the parties. If the parties do not want or do not comply with the agreed content, no one can force them because there is no basis. From a legal perspective, if it is not notarized or authenticated, the agreement does not comply with the provisions of the law and is considered invalid due to formal errors. Thus, the agreement to establish matrimonial property regime must be in writing and notarized or authenticated, providing a solid legal basis to protect the rights of the spouses and ensure they fulfill the agreed contents, limiting disputes related to matrimonial property regime in practice.

1.2. Content Conditions

Regarding the basic content of the agreement on matrimonial property regime, as stipulated in Article 48 of the Law on Marriage and Family, it includes the following:

"Basic content of the agreement on matrimonial property regime:

The basic content of the agreement on property policies includes:

a) Determination of joint property, separate property of spouses;

b) Rights and obligations of spouses regarding joint property, separate property, and related transactions; property ensuring essential family needs;

c) Conditions, procedures, and principles of property division upon termination of property policies;

d) Other related contents.

If issues arise during the implementation of property policies that have not been agreed upon by the spouses or the agreement is unclear, the provisions of Articles 29, 30, 31, and 32 of this Law and corresponding provisions of statutory property policies apply."

The conditions regarding the content of the agreement on matrimonial property regime include:

First, determining the property of the spouses according to the agreement; which properties are identified as joint property and which as separate property. In the written agreement on matrimonial property regime, the spouses need to clearly identify the separate property of each party and the joint property of the spouses. By determining the range of properties and ownership rights of each party, the spouses can agree and unify their rights and obligations towards each type of property.

Further guidance on determining the property of spouses in the agreement content is provided in Clause 1, Article 15 of Decree No. 126/2014/ND-CP as follows:

"1. In cases where spouses choose to apply property policies by agreement, they may agree on property determination in one of the following contents:

a) Property between spouses includes joint property and separate property;

b) There is no separate property of spouses, and all property acquired before and during the marriage belongs to joint property;

c) All property acquired before and during the marriage belongs to the separate ownership of the one acquiring it, without joint property;

d) Determination according to other agreements of the spouses."

Thus, in determining the agreement content, the spouses may choose according to: if there is property, including joint property and separate property; no separate property (all property acquired before and during the marriage is joint); no joint property (all property acquired before and during the marriage is separate); or determined according to other agreements (e.g., determining that the benefits generated from separate property are joint property).

Second, the rights and obligations of spouses regarding joint property, separate property, and related transactions; and property to ensure essential family needs. Based on the previously determined property content in the agreement, the spouses agree on each party's rights to the joint and separate properties and the individual and joint obligations regarding each type of property and how essential family needs will be met with joint or separate property. Ensuring the condition to meet the essential needs of the family is the obligation of the spouses; if the agreement states the property to ensure essential family needs is joint property, but the joint property is insufficient, the spouses should agree on contributing separate property and the amount of contribution to the joint property to ensure essential family needs.

Third, conditions, procedures, and principles for property division upon termination of property policies. The agreement to establish matrimonial property regime is made before marriage and is effective from the day of marriage registration. Based on each party's needs, the spouses may agree on the conditions for terminating the property policies by agreement and determine the circumstances in which one or both parties have the right to request the termination of these property policies. Upon termination of these policies by agreement, property will be divided according to procedures (agreement or request for competent authority resolution) based on the spouses' agreement and principles for property division upon termination of the policy. Property division may follow the method of dividing joint property during the marriage or another principle agreed upon by the spouses. In case of disputes, the resolution is prioritized according to the spouses' agreement.

Fourth, in addition to the main contents above, the spouses may agree on other related contents (e.g., maintenance for parents, children) in the agreement content to fit each party's needs and circumstances.

Regarding the legality of the content of the agreed matrimonial property regime, the agreement must comply with the 2014 Law on Marriage and Family regarding the general principles of matrimonial property regime, the rights and obligations of spouses in meeting essential family needs, regulations on transactions related to the family’s sole residence, and transactions with bona fide third parties involving bank accounts, securities accounts, and other movable assets that do not require ownership or usage registration. These provisions apply regardless of the chosen property policies (agreement-based or statutory), and if the agreement violates these provisions, any concerned party can request the court to declare the agreement invalid according to the law. These are general rules applied in all cases to ensure the rights and interests of the family, the legitimate rights of concerned parties, spouses, and to maintain the order of matrimonial property relations in society; they also help prevent improper motives of spouses.

Not all basic content cases are fully agreed upon by spouses in the document. Important issues may emerge that have not been foreseen, or some contents agreed upon by the spouses might be vague. In resolving disputes, unclear agreements are not applied, but priority is given to the general principles of matrimonial property regime (Articles 29, 30, 31, 32) and corresponding statutory provisions (Clause 2, Article 48, Law on Marriage and Family of 2014).

1.3. Agreement on Invalid Property Regime

Clause 1, Article 50 of the Law on Marriage and Family of 2014 stipulates:

"1. The agreement on matrimonial property regime declared invalid by the court falls into one of the following categories:

a) Non-compliance with the validity conditions of transactions stipulated in the Civil Code and other related laws;

b) Violation of one of the provisions in Articles 29, 30, 31, and 32 of this Law;

c) Severe violation of the rights to maintenance, inheritance, and other legitimate rights and interests of parents, children, and other family members."

To clarify cases where the agreement on property policies is invalid, Article 6 of Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of several provisions of the 2014 Law on Marriage and Family stipulates:

"1. The agreement on matrimonial property regime can be declared invalid in whole or in part by the court.

a) If the entire agreement on matrimonial property regime is declared invalid, the statutory matrimonial property policy applies.

b) If a part of the agreement on matrimonial property regime is declared invalid, the non-invalid contents still apply; for the invalid part, corresponding statutory provisions apply.

The court declares the agreement on matrimonial property regime invalid if falling into the cases stipulated in Clause 1, Article 50 of the Law on Marriage and Family and notes some following cases:

a) An agreement on matrimonial property regime is invalid due to violating the right to ensure the residence of spouses as prescribed in Article 31 and Point b, Clause 1, Article 50 of the Law on Marriage and Family, whereby the agreement allows one party to dispose of the family’s only residence, leading to the spouses having no place to live or failing to meet minimum residence conditions in terms of area, living conditions, safety, and environmental sanitation according to housing regulations.

b) The content of the agreement on matrimonial property regime is invalid due to severe violation of the rights to maintenance, inheritance, and other legitimate rights and interests of parents, children, and other family members as stipulated in Point c, Clause 1, Article 50 of the Law on Marriage and Family, whereby the agreement aims to evade maintenance obligations as regulated from Articles 110 to 115 of the Law on Marriage and Family, or to deprive the inheritance rights of non-dispositional heirs as provided in the Civil Code, or to violate the legitimate rights and interests of parents, children, and other family members regulated in the Law on Marriage and Family and other related laws.

In the agreement on matrimonial property regime, the law clearly stipulates the form, content, and conditions of effective agreements. A newly established agreement must be made before marriage, notarized or authenticated according to the law, and takes effect from the date of marriage registration; if the agreement is amended or extended partially or wholly after marriage, spouses will amend or extend it during the marriage, and such amendments or extensions take effect from the date of notarization or authentication.

The agreement on matrimonial property regime essentially is a civil transaction involving both parties. According to the Civil Law, a civil transaction is valid if it meets the following conditions: the participants have civil act capacity; the purpose and content of the transaction do not violate prohibitions of the law, are not contrary to social morals; and the participants voluntarily engage in the transaction. Thus, if the agreement does not comply with the validity conditions of transactions stipulated in Article 122 of the Civil Code of 2005 and other related laws, it is considered invalid and has no legal value.Alongside that, when constructing the Law on Marriage and Family 2014, the legislators established principles applicable to the matrimonial property regime. These are guiding principles, foundational and directional, applied irrespective of the property policies the spouses choose (property policies by agreement or statutory property policies). In cases where certain issues in the content of the agreed matrimonial property regime are not agreed upon or not clearly agreed upon, the principles stated in Articles 29, 30, 31, and 32 of the Law on Marriage and Family 2014 and corresponding provisions of statutory property policies shall apply. These principles are prioritized in cases of disputes regarding matrimonial property issues to protect the legitimate rights of the spouses and other family members; to protect and strengthen the goal of building an equal, progressive, prosperous, and happy family as per the spirit of the Law on Marriage and Family, the Communist Party's and the State’s policies, and the people's wishes. If the agreed matrimonial property regime violates any general principles of matrimonial property regime, the agreement is considered invalid.

Moreover, to protect the spouse’s legitimate rights and interests; the right to alimony and maintenance; and inheritance rights of the father, mother, children, and other family members, when spouses establish an agreement on matrimonial property regime, the agreement's content must ensure the full performance of alimony and maintenance obligations; it must guarantee inheritance rights for the father, mother, children, and other family members.

Alimony obligations cannot be replaced by other obligations and cannot be transferred to others. Those entitled to alimony are individuals who, according to the law, are entitled to be maintained by others. Alimony obligations are enacted between parents and children; between siblings; between grandparents and grandchildren; between uncles, aunts, and nephews, nieces; and between the spouses, as specified by the Law on Marriage and Family.

The law also stipulates that individuals have the right to make wills to dispose of their property; to leave their property to legal heirs; to inherit as per the will or under the law. According to these provisions, anyone is entitled to inheritance in accordance with the law.

Therefore, a agreed matrimonial property regime will be invalid if its content seriously violates the alimony rights, inheritance rights, and other legal rights and interests of the father, mother, children, and other family members.

With the above stipulations, the law allows spouses the freedom to agree on and dispose of their property but also ensures the obligations related to the property that the spouses must bear towards third parties and family members. This regulation also helps prevent marital agreements that aim to evade civil obligations and negatively affect the legal rights and interests of involved parties; it helps protect the legally recognized rights of the father, mother, children, and other family members.

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2. Providing Information on agreed matrimonial property regime in transactions with third parties in Vietnam

In transactions with third parties, some specific assets do not require ownership or use right registration under the law, such as bank accounts, securities accounts, or movables possessed by one party. According to the law, in transactions with third parties acting in good faith, the spouse whose name is on the bank or securities account is considered to have the right to establish and execute transactions related to that asset. In dealing with third parties in good faith, spouses possessing movables that do not require ownership registration are deemed to have the right to establish and execute transactions related to those assets.

Choosing statutory or agreed-upon matrimonial property regime will lead to the corresponding rights and obligations regarding the property of the spouses. Third parties, when establishing and executing transactions with spouses, are also legally protected concerning the current property regime of the spouses.

In cases where the statutory property policy applies, the rights and obligations related to property of the spouses are clearly defined in the law. Third parties establishing and conducting transactions in such cases can understand the financial situation and the extent of each party's rights and obligations concerning the transactional asset, thereby opting to proceed or not based on their assessment of potential disadvantages.

If spouses choose property policies by agreement, third parties may not know or may mistakenly believe that the property policy in transactions with the spouses is statutory, potentially leading to transactions that are disadvantageous. Therefore, to ensure transparency in the financial status of the spouses and to protect third parties' rights in such transactions, spouses are obligated to inform third parties about relevant details (Paragraph 1, Article 16 of Decree No. 126/2014/ND-CP). Relevant information spouses need to provide to third parties may include ownership and disposal rights, separate and common property, the rights and obligations of each party concerning common property, and their authority to establish transactions with third parties. Disclosing relevant information to third parties in transactions with spouses is a legal obligation. If this obligation is violated, third parties are regarded as acting in good faith and are still protected under the Civil Code.

In civil transactions, third parties in good faith refer to those who possess property without legal grounds but are unaware and cannot know that their possession lacks a legal basis. According to Article 138 of the Civil Code, third parties in good faith are legally protected in two scenarios. Firstly, when a civil transaction is invalid, but the transacted asset is a movable not requiring ownership registration and has been transferred to a third party in good faith via another transaction, the transaction with the third party remains valid unless the owner reclaims the asset as prescribed by law. Secondly, when a third party in good faith receives an immovable or movable requiring ownership registration through auction or transaction with someone who, according to a judicial decision, is the property owner but later loses this status due to the decision being annulled or modified.

Thus, when spouses choose property policies by agreement, they have an obligation to provide relevant information to third parties in transactions. If third parties, unaware of this, still establish transactions that become void for any reason due to the spouses' violation of the information disclosure duty, the rights of third parties in good faith remain legally protected.

3. Amending and cupplementing the content of the agreed matrimonial property regime in Vietnam

When allowing spouses to enter into prenups concerning their matrimonial property regime, the law sets out specific obligations of the spouses to ensure the common interests of the family. The matrimonial property regime includes not only asset-related relationships between the spouses but also those with third parties. Therefore, besides allowing the establishment of prenups regarding the matrimonial property policy, the law also allows the amendment and supplementation of the agreement's content.

Clause 1, Article 49 of the Law on Marriage and Family 2014 clearly states: "Spouses have the right to amend and supplement the agreed matrimonial property regime." A prenup establishing a matrimonial property policy must be made before marriage, only effective from the marriage date, and highly stable. However, due to spouses' life needs, the prenup, aimed at ensuring the spouses' disposal rights over property, permits amendments and supplements so that they align with their will and legal provisions.

Regarding the timing for amendments, during the marriage, spouses can agree to partially or entirely amend or supplement the matrimonial property policy content or apply statutory property policies. Although prenups are highly stable, the law still allows amendments even after marriage to ensure the related property rights and interests of the spouses and to protect the legally safeguarded freedom of agreement between the spouses.

Regarding formality, amendments and supplements, like the initial agreement establishment, not only affect the spouses' rights and obligations but also those of third parties. Therefore, any amendments or supplements to the matrimonial property policy content must be made in writing and notarized or certified as per the law.

On the effective date of the amended or supplemented matrimonial property policy content, unlike the initial agreement, which takes effect from the marriage registration date regardless of when it was notarized or certified, the agreement's amendments or supplements take effect from the notarization or certification date. The amended or supplemented agreement content may be jointly made by the spouses first before notarization or certification, and its effective date is the notarization or certification date, not when the agreement was made. The effective date of the amended or supplemented matrimonial property policy content depends on the notarization or certification, not on when the spouses made the amendments.

The legal consequences of amending or supplementing the matrimonial property policy content do not terminate the original property policy agreement but only change certain agreed-upon aspects. Similar to establishing a new agreed matrimonial property regime, if there are transactions with third parties, the spouses must ensure the duty to inform third parties of relevant information. If this duty is violated, third parties' rights are protected under the Civil Code.

Furthermore, to prevent spouses from amending or supplementing the agreed matrimonial property regime to evade civil obligations, the property rights and obligations arising before the amendment or supplement's effective date remain legally valid unless otherwise agreed by the parties.

Thus, whether establishing a new or amending and supplementing an existing agreed matrimonial property regime, it only alters the spouses' rights and obligations toward their property per the agreement, without changing the property rights and obligations of the spouses toward third parties.

Lawyer Hoang Thi Khanh Linh

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