Latest principles of division of common property between husband and wife upon divorce in Vietnam

According to the current law on marriage and family in Vietnam, the division of the common property between husband and wife upon divorce must comply with the following principles:

First principle: Division of common property must respect the agreement of husband and wife

Husband and wife, upon divorce, have the right to reach an agreement among themselves on all issues, including the division of common property. If the husband and wife cannot reach an agreement but request one, the court must consider and decide on the application of the property regime of the husband and wife as agreed or according to law, depending on each specific case. The Court will handle the division of the common property of the husband and wife as follows:

- In case there is a written agreement on the property regime of husband and wife and this document is not declared invalid by the Court in its entirety, 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 the spouses or the agreement is unclear or void, the corresponding provisions in Clauses 2, 3, 4, 5, Article 59, and Articles 60, 61, 62, 63, and 64 of the Law on Marriage and Family are applied to the division of property between the husband and wife upon divorce.

- In case there is no written agreement on the property regime of the spouses or the written agreement on the property regime of the husband and wife is declared invalid by the court, the statutory property regime of the husband and wife is applied to divide the property of the husband and wife upon divorce.

Latest principles of division of common property between husband and wife upon divorce in Vietnam (Internet image)

Second principle: Husband and wife are equal in property ownership

In case the statutory property regime of husband and wife is applied to divide the common 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 first is about the situation of the family and of the husband and wife: the state of legal capacity, behavioral capacity, health, property, and the ability to work and generate income after the divorce of a spouse, as well as of other family members, in which the husband and wife have personal and property rights and obligations in accordance with the Law on Marriage and Family. The party facing more difficulties after the divorce is entitled to a larger share of the property than the other party or is given priority to receive the type of property necessary to ensure the maintenance and stability of their lives, but it must be suitable to the actual circumstances of the family and of the husband and wife.

+ The second is about the contribution of husband and wife to the creation, maintenance, and development of common property: 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 income equivalent to that of a working husband or wife. The party with more effort to contribute will receive more.

+ The third is to protect the legitimate interests of each party in production, business, and profession so that the parties have conditions to continue working to generate income: 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 and minor children; the child is an adult but has lost the capacity for civil acts.

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

+ Fourth, it is necessary to consider the fault of each party in violating the rights and obligations of husband and wife" is the fault of the husband or wife violating their personal and property rights and obligations, leading to divorce.

For example: in cases where 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.

Third principle: Common property between husband and wife is divided in kind

The husband and wife's common property shall be divided in kind, if it cannot be divided in kind, it shall be divided according to its value. Whichever party receives a portion of the property in kind with a value greater than its share, it must pay the other party the difference.

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.

Fourth principle: Husband and wife's separate property belongs to that person

Separate property of a husband and wife is under their ownership, except for cases where separate property has been merged into common property according to the provisions of the Law on Marriage and Family.

In the event of a merger, mixing separate property with common property, if the husband and wife make a request on property division, they shall be paid the value of their property contributed to that property, unless otherwise agreed upon by the husband and wife.

Fifth Principle: Protect the legitimate rights and interests of wives, minor children, and adult children who have lost their civil acting capacity or are unable to work and have no property to support themselves.

When resolving property division upon divorce, the Courts must consider protecting the legitimate rights and interests of wives, minor children, and adult children who have lost their civil acting capacity or are unable to work and have no property to support themselves.

Example: When dividing a house that is a common property and is the only residence of a husband and wife, in the event it cannot be divided in kind, the court considers and decides to let the spouse directly raise minor children, children with limited or incapacitated civil acts, and pay the value corresponding to the share of the property to be distributed to the husband or wife if the wife or husband so requests.

Mai Thanh Loi

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