Can husband and wife establish agreement on common property as separate property in Vietnam?

Common property is understood as property arising during the marriage. Currently, Law marriage and family has regulations allowing the adding of the separate property of husband and wife into common property. So, is it possible for husband and wife to establish agreement on common property as separate property in Vietnam?

Can husband and wife establish agreement on common property as separate property in Vietnam? (Illustration)

Currently, Vietnam's Law on Marriage and Family 2014 does not have specific regulations on agreement on common property as separate property. However, this issue can be based on the regulations of Article 38 of Vietnam's Law on Marriage and Family, whereby, during the marriage period, husband and wife have the right to agree to divide part or all of the common property, except for the division of common property in one of the following cases:

- 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;

- It aims to shirk the following obligations:

+ Raising and support obligations;

+ Damages payment obligations;

+ Payment obligations when declared bankrupt by a court;

+ Debt payment obligations;

+ Tax payment obligations or other financial obligations toward the State;

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

The division of common property during the marriage period in one of the above cases will be invalidated (Article 42 of the Law on Marriage and Family).

In case of failure to reach an agreement, the husband and wife have the right to request the court to settle the matter according to the provisions of Vietnam's Law on Marriage and Family.

In particular, it should be noted that the agreement on the division of common property must be in writing. This document shall be notarized at the request of the husband and wife or as prescribed by law under Clause 2, Article 38 of Vietnam's Law on Marriage and Family.

Thus, during the marriage period, husband and wife can also establish separate property relations by making an agreement on the division of common property, clearly stating the property rights of each person. This document can be notarized at the request of the husband and wife or as prescribed by law.

Bao Ngoc

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