Principles of property settlement upon divorce in Vietnam

Principles of property settlement upon divorce in Vietnam (Internet image)

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

1. What is divorce?

According to Clause 14, Article 3 of the Law on Marriage and Family 2014, divorce means termination of the husband and wife relation under a court’s legally effective judgment or decision.

2. Principles of property settlement upon divorce in Vietnam

Principles of property settlement upon divorce in Vietnam according to Article 7 of Vietnam's Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP are as follows:

(1) 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 one, 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 the husband and wife upon divorce;

- 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 upon divorce. kiss.

For matters not agreed upon by husband and wife, or which are unclear or void, 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 on asset division upon divorce shall apply.

(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 at the same time as the request to divide the property 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 person with related interests 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 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 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 situation of the family and of the husband and wife" means the state of legal capacity, behavioral capacity, health, and property; the ability to work and generate income after the divorce of the spouses as well as of other family members; and the manner in which the husband and wife have rights and obligations regarding personal and property in accordance with the Law on Marriage and Family .

The party with 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 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.

- "Contribution of husband and wife to the creation, maintenance, and development of common property" is the contribution of separate property, income, and family work and labor by husband and wife to the creation, 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 receive 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 of 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 but must pay the other party for 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: 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.

- "The fault of each party in violating the rights and obligations of the husband and wife" is the fault of the husband or wife in violation of their personal and property rights and obligations, leading to the 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.

(5) 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.

(6) 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 common property and is the sole residence of a husband and wife, in case it cannot be divided in kind, then:

The court considers and decides to allow the spouse to directly raise minor children, children with restricted or incapacitated civil acts, and to receive objects and pay the value corresponding to the portion of the property to be distributed to the husband or wife if the spouse so requests.

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