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In principle, the property formed during the marriage period is the common property of the husband and wife. When the marriage is still ongoing, the regime of common property of the spouses continues to exist. However, in practice, due to various reasons, some couples may wish to divide their common property while still maintaining their marital relationship. In this case, the law refers to it as an agreement to divide common property of the spouses during the marriage period.
The common property of a husband and wife includes what?
According to the provisions of the Law on Marriage and Family of Vietnam in 2014, the common property of husband and wife includes the following assets:
1/ Property created by the husband and wife during the marriage period.
2/ Income from labor, production, and business activities of the husband and wife during the marriage period.
3/ Benefits and profits from the separate property of the husband and wife arising during the marriage period, including:
– Benefits from the separate property of the husband and wife as natural products obtained from their separate property.
– Profits from the separate property of the husband and wife as the gains obtained when exploiting their separate property.
4/ Other lawful income during the marriage period, including:
– Bonuses, lottery winnings, allowances (except for allowances, benefits for those with revolutionary contributions, and other property rights associated with personal status).
– Property established ownership rights over ownerless objects, sunken objects, buried objects, dropped objects, abandoned objects, lost livestock, lost poultry, underwater pets.
– Other income.
5/ Property inherited jointly by the husband and wife during the marriage period.
6/ Property gifted jointly to the husband and wife during the marriage period.
7/ Other property agreed upon by the husband and wife as common property.
8/ Land-use rights acquired by the husband and wife after marriage (excluding land-use rights inherited separately by the wife or husband, gifted separately, or used separate property for transactions).
Methods of Dividing Marital Property During the Marriage in Vietnam
There are two ways for a married couple to divide their common property during the marriage period, as follows:
Mutual Agreement to Divide a Portion or All of the Common Property During the Marriage:
This agreement must be made in writing, notarized, or authenticated as required by the couple or legal regulations.
The effective date of the agreement is the date specified in the written agreement. If the effective date is not specified, it is the date of creating the document.
If the type of property being divided involves transactions that must follow specific forms, the effectiveness of the division is from the date the agreement conforms to the prescribed form according to the law.
Rights and obligations regarding property between spouses and third parties arising before the effective date of the agreement remain legally valid unless otherwise agreed.
Court Resolution Requested by the Married Couple to Divide Marital Property:
If the married couple cannot reach an agreement on the division of common property during the marriage, they have the right to request a court resolution. The effective date of the property division is from the date the court judgment or decision becomes legally effective.
Rights and obligations regarding property between spouses and third parties arising before the effective date of the property division remain legally valid unless otherwise agreed.
Consequences of Dividing Marital Property During the Marriage in Vietnam
Regarding the Marriage Relationship:
After the division of the common property of the married couple during the marriage, the marital relationship still exists. Since the marital relationship has not yet terminated, the spouses still have rights and obligations to each other within the family.
Regarding Property Relationships:
Dividing the marital property during the marriage does not terminate the property regime of the married couple according to legal regulations. Therefore, when the marital relationship has not ended, the spouses can continue to acquire common property. The division of marital property during the existing marriage is a transfer of ownership rights from common property to separate property for certain assets agreed upon in the specific division document. Other assets not covered by the agreement or common property arising in the future remain jointly owned by the spouses.
If there is no other agreement between the spouses, from the effective date of the division of marital property, any benefits or profits arising from the divided property become the separate property of the wife or husband.
From the effective date of the division of marital property, if assets are obtained from the exploitation of the separate property of either the wife or husband, without a basis to determine it as income from labor, production, or business of the wife or husband, or as benefits or profits arising from the separately divided property, then such assets belong to the common property of the married couple.
Rights and obligations regarding property between spouses and third parties arising before the effective date of the division of marital property remain legally valid.
Termination of the Effectiveness of Dividing Marital Property During the Marriage in Vietnam
The spouses have the right to agree to terminate the effectiveness of the document outlining the division of marital property during the marriage. This termination agreement must be made in writing. In cases where the property being divided involves transactions that must adhere to a specific form (notarization or authentication), the termination agreement must also comply with the form prescribed by law.
After the spouses agree to terminate the effectiveness of the document governing the division of marital property during the marriage, the portion of the property that has been divided remains the separate ownership of the respective spouse, unless otherwise agreed. Rights and obligations regarding property arising before the spouses agree to terminate the effectiveness of the division of marital property remain valid.
If the division of marital property during the marriage is carried out through a court judgment or decision, the agreement to terminate the effectiveness of this property division must be recognized by the court.
Cases Where Documents Dividing Marital Property During the Marriage Are Null and Void in Vietnam
The division of marital property during the marriage is considered null and void in the following cases:
– When the division of marital property during the marriage significantly affects the interests of the family, the rights, and interests of underage children, or of adult children who have lost civil act capacity or lack the ability to work and have no property to support themselves.
– In order to evade fulfilling one of the obligations: support, maintenance, compensation for damages, payment when declared bankrupt by the court, repayment of debts, taxes, or other financial obligations to the State, etc.
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DCNH LAW
Address: 38B Tran Nhat Duat, Phuoc Hoa ward, Nha Trang city, Khanh Hoa province, Vietnam.
Phone: (+84) 343320223 – 974278893
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