Current Legal Regulations on Resolving Disputes Over Land Use Rights When Spouses Divorce.

Land use rights are considered common property to borrow money from the bank for children to go to school, husband and wife contribute capital to invest in business using land use rights... When a couple divorces, the interests of this agency, organization or enterprise will be affected. Therefore, during the trial, the court needs to determine that this agency, organization or enterprise is the party with related rights and obligations to resolve it reasonably and satisfactorily to protect the legitimate interests of the agency, organization as well as the interests of the State and society.

When dividing the right to use agricultural land for annual crops, aquaculture land, and salt production land, the court must determine the “needs and conditions for direct land use” of the husband and wife to divide appropriately. This solution has helped to achieve the highest efficiency in land use, avoiding waste.

Resolving disputes over land use rights between spouses upon divorce in a lawful, objective and timely manner also contributes to ensuring security and social order, preserving and protecting traditional moral values of the Vietnamese people. Resolving disputes not only protects the rights of the parties but also eliminates conflicts between them, prevents new conflicts from arising, and reduces the risk of civil disputes becoming crimes.

Through dispute resolution, judges have the opportunity and conditions to gain experience, improve their adjudication skills, detect shortcomings in legal regulations, and promptly make recommendations to supplement and perfect the law.

In short, resolving disputes over land use rights between spouses during divorce is very important. Therefore, when requested, the court must investigate, collect evidence, documents, etc. to have a proper resolution.

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CHAPTER 2

LEGAL STATUS ON RESOLVING LAND USE RIGHTS DISPUTES WHEN COUPLES DIVORCE

2.1. Current legal provisions on resolving disputes over land use rights when spouses divorce.

Article 4 of the 2013 Land Law stipulates: “ Land is owned by the entire people and is represented by the State as the owner and managed uniformly ”. The reason why the 2013 Land Law stipulates this is based on the foundation of the Constitution of the Socialist Republic of Vietnam, amended and supplemented in 2013. Therefore, organizations, individuals and households are only entitled to long-term stable use but do not have ownership rights. If a couple divorces and there is a dispute over land use rights, the only issue that arises is how to divide land use rights, not how to divide land for ownership.

The division of land use rights when a couple divorces has a significant impact on the interests of the couple and other family members. Because land use rights are a type of property with its own characteristics and are a valuable asset that brings the main income to the family. It can be said that land use rights are the right to exploit the useful properties of land to serve the goals of economic development.

- society of the country.

In addition to the 2003 Land Law and the 2000 Marriage and Family Law, the 2005 Civil Code also regulates the division of land use rights between spouses upon divorce. However, the explanations and guidance of competent State agencies are not complete and timely. Because of that, the situation of land dispute resolution by the Court in recent years has encountered many difficulties and the resolution of cases has been slow and inconsistent.

The division of land use rights of spouses upon divorce is stipulated in Article 97 of the 2000 Law on Marriage and Family and is specified in Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family as follows: " The right to use the separate land of one party shall still belong to that party upon divorce ", which means that before marriage, the right to use the land that

The land use rights that each spouse acquires through transfer, conversion, inheritance, mortgage, or assignment or lease by the State are the separate property of the spouses. Upon divorce, the land use rights of each party belong to that party, unless the parties have agreed otherwise [3, Article 23]. “Other agreement” here may be that the spouses agree to include the land use rights as their separate property into the common property of the spouses. The land use rights that the spouses inherit separately, are given separately, or are divided during the marriage are also the separate property of each party and upon divorce will belong to that party, unless the spouses have agreed that it is common property. In such case, if there is a dispute, the person with the obligation to prove is the person named in the certificate of ownership, not the other party.

As for the land use rights which are the common property of husband and wife, the principle is to divide them in half if the husband and wife cannot reach an agreement on the division of property. However, each specific case has its own principles of settlement. Below, we give some examples for each specific case.

2.1.1. For land use rights allocated by the State

According to the provisions of Point a, Clause 2, Article 97 of the 2000 Law on Marriage and Family: “ The division of the common land use rights of spouses upon divorce for agricultural land for annual crops and aquaculture , if both parties have the need and conditions to directly use the land, shall be divided according to the agreement of the two parties; if no agreement is reached, the Court shall be requested to resolve according to the provisions of Article 95 of this Law ”, that is, if the couple cannot reach an agreement, the Court shall resolve according to the principle that the separate property of each party shall belong to that party. In addition, Point a, Clause 2, Article 97 of the 2000 Law on Marriage and Family also stipulates: “ In the event that only one party has the need and conditions to directly use the land, that party shall continue to use it but must pay the other party the value of the land use rights they are entitled to ”.

Point b Clause 1 Article 24 Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family provides specific details

Point a, Clause 2, Article 97 of the 2000 Law on Marriage and Family is as follows: “ In the event that only one party has the need and conditions to directly use the land, that person has the right to continue using the entire land after reaching an agreement with the other party; if no agreement is reached, the land user must pay the other party the value of the land use right that that party is entitled to at the level agreed upon by the two parties; if no agreement is reached, the Court must be requested to resolve the matter ”, meaning that only the party that has the need and conditions to directly use the land has the right to directly use the land.

Article 95 of the 2000 Law on Marriage and Family: “ 1. The division of property upon divorce shall be agreed upon by the parties; if no agreement is reached, the Court shall be requested to resolve. The separate property of each party shall belong to that party.

2. The division of common property is resolved according to the following principles:

a) The common property of the spouses is in principle divided in half, but each party's circumstances, property status, and contribution to the creation, maintenance, and development of this property are taken into consideration. The labor of the husband and wife in the family is considered as income-generating labor;

b) Protect the legitimate rights and interests of wives, minor children or adult children who are disabled, have lost civil act capacity, are unable to work and have no property to support themselves;

c) Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income;

d) The common property of the spouses is divided in kind or by value; the party receiving the property in kind with a value greater than the portion they are entitled to must pay the other party the difference in value.

3. The payment of common property obligations of husband and wife shall be agreed upon by husband and wife; if no agreement is reached, the Court shall be requested to resolve the matter .

Previously, according to the provisions of Article 42 of the 1986 Law on Marriage and Family, the agreement on division of property between spouses upon divorce " must be recognized by the People's Court ", but now the provisions of Article 95 of the 2000 Law on Marriage and Family have promoted the " self-determination " right of spouses, and no longer stipulate the agreement.

The agreement of the spouses must also be recognized by the Court. Therefore, there needs to be specific guidance from competent State agencies on this issue to clearly understand the spirit of the law, avoid arbitrary application, and prevent spouses from agreeing to divide property upon divorce in order to disperse property and avoid the property obligations of the spouses.

For example: In 1982, Mr. Nguyen Van An married Mrs. La Ninh Kieu and lived with Mrs. La Ninh Kieu's parents. They had 3 children, Nguyen Minh Quang, Nguyen Minh Khanh and Nguyen Minh Nhat, born in 1983, 1984 and 1990. Before 1985, there was a policy of allocating agricultural land to people born in that year. In 1992, the commune decided to convert cultivated land to residential land. In the converted land, there were 2 plots of land allocated according to the quota of Nguyen Minh Quang and Nguyen Minh Khanh.

In 1993, Mr. La Van Lang - the father of Mrs. La Ninh Kieu, completed the procedure to convert 190m2 of residential land into residential land, including 2 plots of land allocated to Nguyen Minh Quang and Nguyen Minh Khanh, which was 70m2 , plus the land of Mr. La Van Lang and Mrs. Nong Thi Na (Mr. Lang's wife) which was 120m2 .

On August 9, 2009, Ms. La Ninh Kieu filed a divorce petition to the People's Court of Bao Loc City, Lam Dong Province.

Scenario: How to divide the property, which is the land use right, when Mr. An and Ms. Kieu divorce (in case the parties cannot reach an agreement with each other).

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- The 190m2 land that Mr. Lang has a red book for is the land use right of the household.

- The 02 plots of land assigned to Nguyen Minh Quang and Nguyen Minh Khanh that Mr. Lang transferred to the household land use right certificate are the property of Mr. An and Ms. Kieu. Because the time the State assigned the 02 plots of land assigned to Nguyen Minh Quang and Nguyen Minh Khanh was after Mr. An and Ms. Kieu got married, they have the right to use the land for the 02 plots of land assigned above. Therefore, when Mr. An and Ms. Kieu divorce, the land use right of the wife

When the husband and wife no longer live with the household, they will be separated and divided according to the provisions of law.

According to the provisions of Article 27 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family, it is specifically stipulated as follows: “ In the case where both husband and wife have the right to use agricultural land for growing annual crops, aquaculture, salt production, forestry land allocated to the household after marriage, then upon divorce, the land use rights of the husband and wife and of the children who do not continue to live with the household shall be separated and divided according to the provisions of Point a, Clause 2, Article 97 of the Law on Marriage and Family 2000 ”.

- For the 120m2 land plot assigned to the household before Mr.

An and Ms. Kieu got married, so the couple did not have the right to use the land together with the family. When they divorced, their rights will be resolved according to the provisions of Clause 3, Article 97 of the 2000 Law on Marriage and Family: " In the case where the couple lives with the family but does not have the right to use the land together with the family, when they divorce, the rights of the party who does not have the right to use the land and does not continue to live with the family will be resolved according to the provisions of Article 96 of this Law ". This means that based on the efforts to improve, care for, protect the land... the party who does not have the right to use the land together with the family will be divided a corresponding portion.

2.1.2. For land use rights leased by the State

The difference in the legal provisions on the State leasing land to spouses is that whether it is allocated to both spouses or only one spouse during the marriage, it is the common property of the spouses. This is stipulated in Article 25 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family: “ After marriage, the right to use land that the spouses or only one spouse is leased by the State is the common property of the spouses ”.

For example:

Ms. Nguyen Thi Tam and Mr. Dao Duy Anh got married on January 10, 2004. Ms. Nguyen Thi Tam was given money by her family to pay the land rent (the land rent was paid in one lump sum for the entire rental period) for 12 years and directly signed the land lease contract with the State from January 23, 2004. After renting, Mr. Anh and Ms. Tam built a level 4 house on the rented land both for living and for grocery business. In 2010, Mr. Dao Duy Anh filed a divorce petition to the People's Court of Nam Dan Commune, Nghe An Province and requested the People's Court to divide the common property, which was the rented land and the value of the house at the time of divorce.

The People's Court of Nam Dan Commune, Nghe An Province determined that the leased land was Ms. Tam's private property and the property on the land (the ground-floor house) was the common property of the couple. Therefore, the court proceeded to appraise and divide the common property, the ground-floor house, and assigned the land to Ms. Tam for continued use and forced Ms. Tam to pay the property value to Mr. Anh; the court fees were borne equally by both parties.

Through reviewing the case it can be seen that:

- The land lease contract arose after Mr. Anh and Ms. Tam got married, so in this case, according to the provisions of Article 25 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family: " After marriage, the land use right that the husband and wife or only one of the husband and wife is leased by the State is the common property of the husband and wife;"

Therefore, the division of property upon divorce must be carried out in accordance with the provisions of law: " When divorced, the division of land use rights is carried out as follows:

1. In case a couple has paid the annual rent and then divorces, if both parties have the need and conditions to directly use the land, the division of land use rights shall be carried out in accordance with the provisions of Article 95 of the Law on Marriage and Family; the parties must sign a land lease contract with the competent State agency.

2. In case a couple has paid the annual land rent and then gets divorced, if only one party has the need and conditions to directly use the land, that party may continue to use it and must re-register the land lease contract with the competent State agency, if the previous land lease contract was in the name of the other party or both parties; if the parties have invested

If the other party invests in assets on land, he/she must pay the other party a portion of the value of the assets invested on the land that he/she is entitled to at the time of division of divorce property, based on the assets and investment efforts of the other party, unless otherwise agreed.

3. In case the husband and wife have paid the land rent for the entire rental period, when divorcing, the parties shall agree on the use of that land and pay each other the rent paid for the remaining rental period.

In case one party is directly using the entire land area, he/she must pay the other party half of the land rent corresponding to the remaining land lease period, from the time of property division upon divorce, unless otherwise agreed. If the parties have invested in assets on the land, the party continuing to rent the land must pay the other party a portion of the value of the assets invested on the land at the time of property division upon divorce, based on the assets and efforts invested by the other party, unless otherwise agreed by the parties .

- At the time of divorce, the land lease contract had 6 years left. The fact that Ms. Tam's family gave money to pay the land lease does not mean that the land lease contract is Ms. Tam's separate property, because the land lease contract arose after the marriage, so according to the law, this is the common property of the couple. The money that Ms. Tam's family gave to Ms. Tam to pay the land lease will be her separate property. The land lease period was from 2004 to 2010 (the time of divorce), the money paid for the land lease was voluntarily included in the common property by Ms. Tam and she requested to pay her the land lease from the time of divorce, which is 2010 to 2016, because this is her separate property. If Mr. Anh has the right to continue using the leased land, he is obliged to pay the rent to Ms. Tam.

The People's Court of Nam Dan Commune, Nghe An Province, stated that the land use right is Ms. Tam's private property and assigned her to continue using it, which is unfounded because the person who has a direct need to use it is Mr. Anh - the seller, not Ms. Tam - a state official.