Instructions to determine the invalidity of the agreement on the property of husband and wife in Vietnam

Instructions to determine the invalidity of the agreement on the property of husband and wife in Vietnam (Internet image)

Regarding this issue, LawNet would like to answer as follows:

1. Guidance on determining the invalidity of the agreement on marital property in Vietnam

Guidance on determining that the agreement on the husband and wife's property regime is invalid under Article 6 of the Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP is as follows:

- The agreement on the husband and wife's property regime may be declared invalid by the Court in whole or in part.

+ In case the agreement on the husband and wife's property regime is declared completely invalid by the Court, the statutory property regime of the husband and wife shall apply.

+ In case the agreement on the husband and wife's property regime is declared partially invalid, the contents that are not invalidated will still apply; for the invalid content, the corresponding provisions on the property regime of the husband and wife according to the law shall apply.

- The court shall decide to declare that the agreement on the husband and wife's property regime is invalid in the cases specified in Clause 1, Article 50 of the Law on Marriage and Family, and note some of the following cases:

+ The agreement on the husband and wife's property regime is invalidated due to the violation of the spouse's right to secure accommodation as prescribed in Article 31 and Point b, Clause 1, Article 50 of the Law on Marriage and Family  is the case where such an agreement allows one party to have the right to dispose of the house as the sole residence of the husband and wife, resulting in the husband or wife having no place to live or not having the minimum accommodation in terms of area, living conditions, safety, and environmental sanitation in accordance with the law on housing.

+ The content of the agreement on the husband and wife's property regime is invalidated due to serious violations of the right to alimony, inheritance, and other lawful rights and interests of parents, children, and other family members specified at Point c, Clause 1, Article 50 of the Law on Marriage and Family, which are:

If such an agreement is to evade the support obligation specified in Articles 110 to 115 of the Law on Marriage and Family, to deprive the heirs of their inheritance rights regardless of the content of the will, in accordance with the Civil Code, or to violate the lawful rights and interests of parents, children, and other family members as prescribed by the Law on Marriage and Family and other relevant laws.

Example 1: Mr. A is obligated to support Mr. B. Mr. A then married Mrs. C and agreed to transfer all of his assets to Mrs. C, so there is no more property to perform the support obligation for Mr. B. In this case, the agreement on property between Mr. A and Mrs. C is void.

Example 2: Mr. A has an adult child but is unable to work. After that, Mr. A married Ms. B. Mr. A and Ms. B agreed to establish the husband and wife's property regime; in which all assets of Mr. A will be inherited by Ms. B when Mr. A dies.

In this case, the content of the agreement on the property regime between Mr. A and Ms. B is invalidated for the part of Mr. A's property that the son who has lost his/her civil act capacity inherits according to the provisions of law.

2. Principles of property settlement between husband and wife upon divorce in Vietnam

Principles of property settlement between husband and wife upon divorce in Vietnam, according to Article 7 of Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP, are as follows:

- When a husband and wife divorce, they have the right to reach an agreement among themselves on all issues, including the division of property. In case the husband and wife cannot reach an agreement but request it, 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:

+ 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;

+ In the event that 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 upon 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 and 5 of Article 59 and Articles 60, 61, 62, 63, and 64 of the Law on Marriage and Family shall apply to divide the property of husband and wife upon divorce.

- When settling 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.

- When dividing the common property of husband and wife upon divorce, the Court must determine whether the husband and wife have property rights and obligations towards the third party in order to bring the third party to participate in the proceedings as a person with related rights and obligations.

In the event that 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 another case.

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

+ "The family and spouse's situation" means the status of a spouse's legal capacity, behavioral capacity, health, property, and ability to work and generate income after a divorce, as well as that of other family members in which the husband and wife have personal rights and obligations and property obligations in accordance with the Law on Marriage and Family.

The party with more difficulties after the divorce gets a larger share of the property than the other party or is given priority to receive the type of property to ensure the maintenance and stability of their lives, but it must be suitable to the actual circumstances of the family and of the spouses.

+ "Contributing efforts of husband and wife to the creation, maintenance, and development of common property" is the contribution of separate property, income, family work, and labor of husband and wife in creating, maintaining, and developing the 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 an income equivalent to that of a working husband or wife. The party with more effort to contribute will be shared more.

+ "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 that the division of common property between husband and wife must ensure that husband and wife who are engaged in professional activities can continue to practice 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, minor children, or adult children who have lost their legal capacity to act. 

Example: Husband and wife have a common property, which is a car. The husband is driving a taxi worth 400 million VND and the wife is doing business with a grocery store worth 200 million VND.

When resolving divorce and the division of common property, the Court must consider handing over groceries to the wife, and a car to the husband so that they can continue to do 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.

+ "The fault of each party in violating the rights and obligations of husband and wife" is the fault of the spouses for violating the personal rights and obligations of the husband and wife, leading to the divorce.

For example: if the 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 the legitimate rights and interests of the wife and minor children.

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

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