The property regime under current Vietnamese law is the community property regime. In this regime, the common property of the spouses includes the assets that the spouses created during the marriage and the benefits and income obtained from the property of the spouses. The property that each spouse acquired before marriage or was given or inherited separately during the marriage will belong to that person. This property regime is chosen by the legal systems of many countries because it ensures the common interests of the whole family while still respecting and protecting the legitimate interests of each individual. And this property regime also gives the spouses flexibility in exercising their ownership rights to common property as well as independence in deciding on each person's separate property, thereby ensuring the rights of third parties when participating in transactions with the spouses.
2.1.2 Basis for the emergence of joint ownership of property rights between spouses
Inheriting and developing the provisions of the 1986 Law on Marriage and Family of Vietnam, the 2000 Law on Marriage and Family of Vietnam has provided for the basis, origin, and composition of the types of assets in the common property of spouses. The provisions of the 2000 Law on Marriage and Family of Vietnam on the issue of common property of spouses are more specific and easier to apply than the 1986 Law on Marriage and Family of Vietnam. In addition to providing for the basis, origin, and composition of the types of common property of spouses, the legislator also uses the principle of inference to determine the common property of spouses to ensure the common interests of the family and of the spouses. However, basically, the basis for determining the common property of spouses is still based on the period of marriage and the origin of the property. In principle, the basis for establishing the right to jointly owned property of spouses is also the basis for establishing the common property of spouses.
The first basis is based on the time of property creation, the common property relationship between husband and wife is determined according to the period of marriage. Clause 1, Article 27 of the Law on Marriage and Family clearly stipulates that the common property of husband and wife is defined as " property created by husband and wife, income from labor, production and business activities and other legal income of husband and wife during the marriage" . This means that all property created or legally acquired by husband and wife
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During the marriage period, all assets are common property (except in cases where the husband and wife are given a separate gift or inherit a separate inheritance). The marriage period is a particularly important factor in determining the joint ownership relationship between the husband and wife for the property. If there is no legal marriage relationship between a man and a woman, then there cannot be a joint ownership relationship between them. At the same time, the husband and wife can have separate assets created before or after the marriage period, but in principle, according to the law, all assets created or legally acquired by the husband or wife during the marriage period are the joint property of the husband and wife. The marriage period is determined as the period of time the marital relationship exists, calculated from the date of marriage registration to the date of termination of the marriage (Clause 7, Article 8 of the Law on Marriage and Family 2000). So when is the date of marriage registration determined? According to the regulations on marriage registration procedures, "When registering for marriage, both the man and woman must be present. The representative of the People's Committee at the commune level requests both parties to state their desire to voluntarily marry. If both parties agree to marry, the civil status officer will record it in the marriage registration book and the marriage certificate. The man and woman sign the marriage certificate and the marriage registration book. The Chairman of the People's Committee at the commune level signs and issues each spouse an original copy of the marriage certificate, explaining to both parties the rights and obligations of the husband and wife according to the provisions of the Law on Marriage and Family" (Clause 3, Article 18, Decree 158/2005/ND-CP dated December 27, 2005 on registration and management of civil status). Thus, the date of marriage registration is understood to be the date on which the man and woman go to the competent State agency to register according to the provisions of law, that date is also the date recorded in the marriage certificate and marriage registration book. Determining the exact date of marriage registration is very important to determine which assets the husband and wife acquired after that date are joint assets. For example, in 2005, Mr. A invented a very modern peanut peeling tool. On January 1, 2007, Mr. A submitted a patent application to the National Office of Intellectual Property. Later, Mr. A married Ms. B and the marriage certificate of Mr. A and Ms. B was dated August 10, 2007. On the same day, Mr. A was granted a patent by the National Office of Intellectual Property. According to Clause 2, Article 93 of the 2005 Law on Intellectual Property, the patent is effective from the date of issuance, so Mr. A's property rights are
The invention created by Mr. A also arose from August 10, 2007. So are those property rights considered the common property of Mr. A and Mrs. B? Because the marriage period is calculated from the date of marriage registration, August 10, 2007 is considered the beginning of the marriage period, and the property that Mr. A and Mrs. B have acquired since this date is considered common property. Therefore, the property rights arising from the patent granted to Mr. A are the common property of the couple.
To determine the period of marriage, it is necessary to determine the exact date of the termination of the marriage. According to the law, the period of marriage ends when there is a legal event that terminates the marital relationship before the law, which is:
- When the wife or husband dies or when the Court's decision declaring the wife or husband dead becomes legally effective.
- In case the husband and wife are still alive, the marriage ends when the divorce decision of the Court takes legal effect.
The date of death of one or both spouses or the date of death of both spouses is calculated from the date stated on the death certificate (Article 22 of Decree 158/2005/ND-CP dated December 27, 2005 on registration and management of civil status). For persons declared dead by the Court, their date of death is based on the date determined by the Court in the decision declaring a person dead (Clause 2, Article 81 of the 2005 Civil Code); if the date of death of that person cannot be determined, the marital relationship ends from the date the Court's decision declaring the death of the spouse takes legal effect.
In the case of a husband and wife applying for divorce, the date of termination of the marriage relationship is the date the court's judgment or decision granting divorce takes legal effect. An issue that arises is that when a husband and wife divorce, there will be a division of common property. The husband and wife can agree on the division of common property and request the court to record it in the court's judgment or decision on divorce, or if they cannot reach an agreement, the husband and wife can request the court to divide the common property. From the date the court decides to divide the common property to the date the court's judgment or decision granting divorce takes legal effect is a period of time. If during that time a new asset appears, will that asset be considered common property and the asset?
How will that property be divided? In principle, the newly created property is still the common property of the husband and wife and must be divided in half for each person. If the husband and wife can reach an agreement, there will be no problem, but if the husband and wife cannot reach an agreement, do they have the right to request the court to divide the common property of the husband and wife?
One of the factors to determine the period of marriage as a basis for determining the common property relationship of husband and wife is that the marriage must be legal. To know whether a marriage is legal or not, we need to base it on the provisions of the law. To be considered a legal marriage, the marriage must comply with all the conditions for marriage and be recognized by a competent State agency according to the prescribed legal procedures. Even if the man and woman have registered their marriage according to the prescribed legal procedures but violate one of the conditions for marriage as prescribed in Articles 9 and 10 of the 2000 Law on Marriage and Family, the subjects prescribed in Article 15 of the 2000 Law on Marriage and Family have the right to request the court to declare the marriage illegal. If the parties' illegal marriage is not recognized as a legal marriage, the man and woman will not be able to have a common ownership relationship between husband and wife for property.
However, due to historical factors, the law still provides for some exceptions applicable to the actual marital status after the Law on Marriage and Family 2000 came into effect. These cases include:
- In the case of a marital relationship established before January 3, 1987, when the 2000 Law on Marriage and Family took effect, whether they registered their marriage or not, their marital relationship is still recognized by law and the time of establishing the marital relationship is calculated from the date they lived together as husband and wife, not the date of marriage registration (if they registered their marriage).
- In the case of men and women living together as husband and wife from January 3, 1987 to before January 1, 2001 (not yet registered for marriage) and having the conditions to get married, they are obliged to register their marriage before January 2, 2003. If before January 2, 2003, whether they registered their marriage or not, if there is a request for divorce
The court still recognizes their marriage and the time of the marital relationship is from the day they live together as husband and wife. If from January 2, 2003 they do not register their marriage according to the legal procedures, the law does not recognize their marital relationship, therefore there is no joint ownership relationship between husband and wife. If during the time they live together they create common property, it will be resolved as follows: the common property will be divided according to the agreement of the parties; if no agreement is reached, the Court will be requested to resolve, taking into account the contributions of each party; priority will be given to protecting the legitimate rights of women and children (Article 3 of Resolution No. 35/2000/QH10 of the National Assembly dated June 9, 2000 on the implementation of the Law on Marriage and Family; Article 17 of the Law on Marriage and Family 2000). If they registered their marriage on January 2, 2003 and later requested a divorce or division of property during the marriage, the Court would only recognize their marital relationship from the date of marriage registration, not from the date they lived together as husband and wife.
The above exceptions are provided by law to ensure the legitimate interests of those who have lived together as husband and wife before the Law on Marriage and Family 2000 came into effect and to resolve difficulties and problems encountered by the Court, while creating a solid legal basis for the Court to resolve cases related to "de facto marriage". Because the time of recognition of the marital relationship in each of the above cases is different, those who apply the law need to pay attention to accurately determining the time of commencement of the legal marital relationship, from which they can accurately consider which assets are the common assets of the husband and wife.
The second basis for determining the joint property of husband and wife is based on the way property rights are created during the marriage. Joint property of husband and wife can be created by husband and wife, income from labor, production and business activities and other legal income of husband and wife during the marriage.
This is the most common basis for the creation of joint property between husband and wife. After marriage, the marital relationship is established, the husband and wife work together and agree to create property to build and maintain the family, providing for the needs of the family.
common life, fulfilling the obligations of caring for each other as well as caring for and educating children. The act of creating property is understood as the husband and wife, based on their work and expertise, creating property through their own labor or using common property to hire others to create that property, or can also use common property to establish ownership of other property through specific contracts. Property created during marriage can be objects, valuable papers, money or property rights. However, when understanding property rights in a broad sense, ownership rights are also property rights, so property created during marriage in any form is considered to bring property rights to the husband and wife. Therefore, the act of creating property rights of the husband and wife during marriage can be understood to include the following acts:
- Husband and wife, through their work or profession, directly create property through their own labor, such as creating a literary or artistic work, thereby generating copyright for the work they create; writing a software or creating any property through their work, all generate property rights over the fruits of their labor.
- Property rights created by the husband or wife during the marriage can be property rights obtained through signing contracts such as property rights sale contracts, service contracts, loan contracts, etc. Through these contracts, the husband or wife can obtain property rights and liabilities against the subjects with obligations arising from the contract.
- The property rights that the husband and wife have during the marriage can be "income from labor, production and business activities and other legal income of the husband and wife during the marriage". According to the Vietnamese dictionary, "income" is understood as "receiving money or material wealth from a certain activity". Thus, the income of the husband and wife is the material benefits that the husband and wife have from participating in labor, production and business activities. These incomes can be expressed in the form of property rights, for example: the capital contribution of the husband and wife in companies with legal status brings property rights to the owner such as the right to pay interest.
according to capital contribution... In addition, the common property of the spouses also includes other legal incomes of the spouses during the marriage. Resolution 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court has guided that "other legal incomes of the spouses may be salaries, bonuses, wages, subsidies or profits from business activities, production, lottery winnings that the spouses have during the marriage". It can also be the property that the spouses are established according to the provisions of the 2005 Civil Code such as establishing ownership of ownerless objects, objects whose owners cannot be determined (Article 247); establishing ownership of buried or sunken objects that are found (Article 248); establishing ownership of objects that others have dropped or forgotten (Article 249); Establishing ownership of lost livestock and poultry (Articles 250 and 251); establishing ownership of aquatic animals (Article 252) during marriage.” According to this provision of Resolution 02, it seems that other legal incomes are expressed as money and tangible assets, not intangible assets. However, the term income needs to be understood more broadly as any material benefits that the husband and wife receive, including property rights, not just money and tangible assets. The explanation of Resolution 02 of the People's Court as above seems to be incomplete and not covering all cases because the legal income of the husband and wife during marriage can also be assets that the husband and wife are established under the provisions of other legal documents such as the land law, the intellectual property law, the law on forest exploitation and protection, and the mineral law. For example, in the field of intellectual property, a husband or wife can only establish rights to a geographical indication when the State grants the right to use the geographical indication, provided that they are the ones who carry out the production of the product bearing the geographical indication in the respective locality and bring that product to the market. This is one of the cases where property rights are created by law, which, according to the interpretation of Resolution 02, does not seem to exist.
- Land use rights are considered a special type of property, so the Law on Marriage and Family 2000 has separate regulations on land use rights jointly owned by husband and wife, accordingly, "Land use rights that husband and wife acquire after marriage are
common property of husband and wife”. According to the provisions of the 2005 Civil Code and the Land Law, land is property owned by the entire people and managed by the State. To exercise its ownership rights, the State allocates land to people for use, which is the right to use land. The right to use land is a property right and the subjects exercise their rights on the object of property owned by others.
Because the law stipulates that "The right to use land that a husband and wife acquire after marriage is the common property of the husband and wife" without a comma between the wife and husband, there is a view that the Law on Marriage and Family 2000 does not separate the husband and wife, so the right to use land must be acquired by both husband and wife during the marriage to be considered common property, and if each person acquires it separately (for example, the agency grants a house attached to the right to use land or assigns the right to use land), it is separate property. However, this understanding is too mechanical and word-splitting. In this case, it should be understood that the right to use land that the wife or husband or both acquire during the marriage is common property. This explanation is reasonable and consistent with the nature of the marriage relationship, ensuring the rights of the husband and wife to a very valuable asset, which is the right to use land.
According to the provisions of the 2000 Law on Marriage and Family and the 2003 Law on Land, the land use rights that husband and wife can obtain can be based on the following grounds:
- Land assigned or leased by the State
- Receive transfer, receive land use rights when handling mortgage contracts, guarantees with land use rights to recover debt
- Given as a gift or inherited jointly
- Land use rights acquired under a judgment or decision of the People's Court, a judgment enforcement decision of an enforcement agency, or a land dispute resolution decision of a competent State agency that has been enforced.
Also according to the provisions of Clause 1, Article 27 of the Law on Marriage and Family 2000, "the right to use land that the husband or wife acquired before marriage or inherited separately is only common property when the husband and wife have an agreement". Based on the wording of the law, we can understand that unlike other types of property, the right to use land that the husband and wife are entitled to