Determining marital property upon divorce according to the Law on Marriage and Family 2014

The market economy has led to many people living a loose life, valuing material things, and the feelings between people are no longer as passionate and valued as before. The value of large assets and the importance of material things make property disputes between husband and wife in divorce settlement more fierce and tense.

Our country has entered a new stage of development, along with the process of industrialization, modernization and international integration, Vietnamese society is suffering from positive and negative impacts, not only in terms of economy but also in terms of culture and society. Family as a cell of society is also not immune to that multi-dimensional impact. Some new concepts of marriage and family from abroad have entered Vietnam and caused many different consequences. In such a context, the Law on Marriage and Family 2000 has revealed a number of limitations and inadequacies that affect the stability of marriage and family relations. In order to create a long-term, stable and unified legal basis for the construction and improvement of the Vietnamese marriage and family regime; contributing to building a prosperous, progressive and happy Vietnamese family. Inheriting and developing the 1959 Law on Marriage and Family, the 1986 Law on Marriage and Family and the 2000 Law on Marriage and Family, the Law on Marriage and Family was passed by the 13th National Assembly of the Socialist Republic of Vietnam, 7th session on June 19, 2014, regulating marriage and family issues, including the property issues of spouses, in a more complete and reasonable manner, facilitating implementation and application of dispute resolution.

For the above reasons, I decided to choose the topic "Determining marital property upon divorce according to the 2014 Law on Marriage and Family" as my Master's thesis in law.

2. Research status of the topic

Due to the important role of family in society, research on determining marital property upon divorce has always received attention and interest, and has been mentioned by many researchers and scholars.

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In recent times, in our country there have been a number of research projects related to the property regime of spouses. These research projects can be classified into three large groups as follows:

Group of theses and dissertations: Typical research works in this group include: Property regime of spouses under the Law on Marriage and Family of Vietnam (Nguyen Van Cu, PhD thesis, 2005); Determining the property regime of spouses - some theoretical and practical issues (Nguyen Hong Hai, Master's thesis, 2002); Law on Marriage and Family 2000 - Achievements, difficulties and directions for improvement (Tran Thi Thuy Lien, Master's thesis, 2012); Division of common property of spouses under Vietnamese law - Practical application and directions for improvement (Nguyen Thi Hanh, Master's thesis, 2012); Resolving disputes on division of common property of spouses upon divorce (Dinh Thi Minh Man, Master's thesis, 2014)...

These works have a wide scope of research, referring to many different aspects, some only deal with a small aspect of the issue of marital property, and some are dedicated and in-depth research works on determining marital property upon divorce. However, the above research works, despite their superior and advanced content, still have many issues that do not keep up with the pace of social life, which is always changing and directly affects married life, especially the issue of property.

Textbook and monograph group: In this group, we must mention some typical works such as: Textbook on Vietnamese Marriage and Family Law (Hanoi Law University, People's Police Publishing House, 2008), Textbook

Skills in resolving civil cases (Academy of Justice, People's Police Publishing House, 2007); Scientific commentary on the Law on Marriage and Family of Vietnam (Nguyen Ngoc Dien, Tre Publishing House, 2004); Property regime of spouses under the law on marriage and family of Vietnam (Nguyen Van Cu, Judicial Publishing House, 2008); Some theoretical and practical issues on the Law on Marriage and Family 2000 (Authors Nguyen Van Cu - Ngo Thi Huong, National Political Publishing House, Hanoi, 2002);...

In the above books, determining marital property upon divorce has been analyzed in a general and general manner, some books go into in-depth and specific analysis but have not yet fully pointed out the shortcomings and limitations in the face of changes in social life that affect the property regime of spouses.

Group of articles in newspapers and magazines: Some articles can be mentioned such as Further discussion on division of common property of spouses during marriage according to current law on marriage and family (Nguyen Hong Hai, 2003, Journal of Law, No. 5); Property regime according to agreement between spouses relating from foreign law to Vietnamese law (Bui Minh Hong, 2009, Journal of Law, No. 11);….

The authors only mention one aspect or one specific case related to determining marital property upon divorce without being able to comprehensively analyze all aspects of this institution.

A common point of all three groups of research works mentioned above is that most of the authors tend to analyze and evaluate the current state of the law regulating the property regime of spouses. Some research works have also referred to and related to the practical application of some legal provisions. However, such connections and analysis are only illustrative of some specific cases and do not have a comprehensive and comprehensive examination of all aspects of the application of regulations on the property regime of spouses in practice.

In the above groups, there are works that have researched on determining marital property upon divorce, but facing the socio-economic development with many changes, being influenced by the country's customs, it inevitably has a great impact on the psychology of each individual, each family, each couple. At the same time, with the increasing trend of divorce cases and determination and division of marital property upon divorce and the newly promulgated 2014 Law on Marriage and Family and the initial application in practice, it is important to study the provisions of the law on determining marital property upon divorce. Through research, we will see the progress of the 2014 Law on Marriage and Family and the limitations and shortcomings in the process of applying the provisions of the law to determine marital property, propose recommendations to improve the law and directions to improve the effectiveness of determining marital property upon divorce.

3. Research objectives

3.1. General objectives

The general objective of the thesis is to study the concept, characteristics, role and significance of determining marital property upon divorce according to the Law on Marriage and Family 2014. At the same time, analyze specific regulations to clearly understand the content, effectiveness of application, as well as limitations and difficulties in the process of law application, and make some recommendations to improve the law on determining marital property upon divorce according to the Law on Marriage and Family 2014.

3.2. Specific objectives

Based on the above general objectives, the thesis carries out the following specific objectives:

- Research theoretical issues on marital property, division of marital property upon divorce according to the 2014 Law on Marriage and Family.

- Systematically study the historical development of determining marital property upon divorce according to Vietnamese law over time.

- Research current legal regulations on marital property and how to determine marital property upon divorce.

- Research on the practical application of regulations on determining marital property when divorcing according to the law..... Thereby, evaluating the achievements as well as the difficulties and shortcomings of applying the principles of determining marital property when divorcing according to the law.

- From the content analysis and practical research on the application of determining marital property when divorcing according to the law, the thesis proposes recommendations to improve the law on determining marital property when divorcing according to the law.

4. Research subjects

Within the scope of this thesis, the thesis will analyze the provisions of current law on the theoretical and practical basis for determining marital property upon divorce according to the 2014 Law on Marriage and Family.

5. Scope of research topic

Within the framework of a master's thesis, the thesis focuses on the following issues:

- Current legal regulations on determining marital property upon divorce are stipulated in the 2000 Law on Marriage and Family, the 2014 Law on Marriage and Family, the 2005 Civil Code and a number of other relevant legal documents.

- Practical application of current legal regulations on determining marital property upon divorce. In particular, focusing on some difficult, complicated, typical issues; cases of incorrect application of the law...; studying and researching specific examples, actual judgments from which to comment and analyze

The main reasons that reduce the effectiveness of law enforcement on determining marital property in divorce in practice.

The thesis does not mention the procedural aspect when resolving the issue of determining marital property upon divorce. The thesis also does not consider or research the issue of determining marital property upon divorce from the perspective of international justice.

6. Methodology and research methods

The methodological basis for the research topic is dialectical materialism, historical materialism and the Party's viewpoints and the State's laws regulating marriage and family relations.

Specific research methods: During the research process, the author used a combination of different methods such as analysis, comparison, synthesis, statistics, practical survey... During the practical survey, the thesis applied the method of in-depth interviews with a number of relevant people to collect missing official archival documents, and at the same time to have more vivid materials from the practice of those who directly apply the law.

7. Structure of the thesis

In addition to the Introduction, Conclusion, References and Appendix, the Thesis consists of two chapters:

Chapter 1: Some theoretical issues on determining the property of spouses upon divorce.

Chapter 2: Determining marital property upon divorce according to current law, practical application and some recommendations.

CONTENT

Chapter 1: SOME THEORETICAL ISSUES ON DETERMINING MARRIAGE'S PROPERTY IN DIVORCE

1.1. Concept of marital property regime and determination of marital property upon divorce

1.1.1. Concept of marital property regime

The family is the cell of society, reflecting the nature and structure of society. The family has a particularly important position and role in the existence and development of society. Only when the family is good will the society be good. To build a good family, the foundation of marriage must be sustainable. In addition to being formed on the basis of voluntariness, equality and progress, the creation of property is one of the necessary conditions to support the family, and is the material condition and economic basis for a sustainable marriage. Therefore, lawmakers have paid attention to building regulations on the property regime of spouses, which is one of the most important and fundamental institutions of the law on marriage and family.

Husband and wife, as citizens, have the right to possess, use and dispose of their property. Property in the legal dictionary means "wealth and material used for production or consumption purposes", and according to the 2005 Civil Code, "property includes objects, money, valuable papers and property rights" [40, Article 163] . Before marriage, the property of each man and woman belongs to the category of personal property. The owner has full rights to possess, use and dispose of the property under his or her ownership. Only after marriage and during the marriage, the issue of property between husband and wife arises, common property is formed, and the interests and rights to possess, use and dispose of this property are also formed. Due to the special nature of the marital relationship - community, the husband and wife

Husband and wife contribute to building assets and a harmonious and happy family.

During the marriage, husband and wife are bound by rights and obligations, including rights and obligations related to establishing and performing transactions related to common property and separate property of the husband and wife. All assets of the husband and wife, whether they are each person's own or the joint property of both, must be exploited and used first of all to ensure the maintenance and development of the family, to fulfill the obligation to care for and help each other; the obligation to care for, raise and educate children, etc. In the name of the family's interests, the husband or wife can establish and perform transactions on common property on their own and in some cases, the obligations arising from such transactions can bind both husband and wife jointly, meaning that the husband or wife, even if not directly involved in the transaction, must be responsible together with the wife or husband to perform the obligations with common property, even with their own separate property. Therefore, property is not only related to the practical interests of both parties but also to third parties, especially when the couple participates in commercial business activities. This is one of the reasons why legislators must provide for the property regime of spouses. Thanks to the prescribed property regime of spouses, it creates conditions for the wife, husband and third parties to freely participate in transactions related to the property of spouses within the legal framework, protecting their legitimate rights.

In the law of our State, up to now there has not been a concept of the property regime of spouses stipulated in a specific document of a competent state agency. The property regime of spouses is stipulated in the law as an objective necessity, aiming to regulate the property relationship of spouses, contributing to the stability of social relations.

I agree with the general thesis of the property regime of spouses as follows:

Determining marital property upon divorce according to the Law on Marriage and Family 2014 - 2

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