Division of common property between husband and wife according to the Law on Marriage and Family 2014

Second, when dividing common property between husband and wife, the 2014 Law on Marriage and Family not only ensures the legitimate rights and interests of the wife; Protect the rights of minor children and adult children who have lost civil act capacity or are unable to work and have no assets to support themselves, but also ensure that other social relationships are stable. determined, the economic and business activities of the husband and wife are maintained, ensuring that after dividing the common property of the couple, these relationships are not disturbed. After dividing the common property of the husband and wife, their life is is still guaranteed. This shows that the law clearly stipulates the principles when dividing common property between husband and wife: protecting the legitimate interests of each party in production, business and occupation so that the parties can continue to work and generate income. [39, point c, clause 2, Article 59]. Husband and wife who are carrying out production and business activities related to common property have the right to receive that property back and must pay the other party the difference in property value to which they are entitled, in case it is legal. Business law has different provisions [39, article 64]. In the case of dividing common property of husband and wife when one party dies first or is declared dead by the Court, when dividing the estate, if this division seriously affects the life of the surviving spouse, family, the surviving spouse has the right to request the Court to limit the division of the estate according to the provisions of the Civil Code - temporarily undivided for a period of not more than 3 years, at the end of this period if there is still a basis. If this division of the estate affects the lives of the surviving spouse and family, the surviving spouse can request the Court to extend the restriction on division of the estate again but not for more than 3 years [39, Clause 2, Article 66; 40, Article 66].

Third , the recognition of the agreed-upon property regime contributes to limiting long-term disputes when dividing common property between husband and wife, demonstrating innovation in the legislative thinking of lawmakers. Law on Marriage and Family in particular and

Vietnamese law in general has made changes in the thinking of law-making to increasingly suit practical legal needs and legal traditions in the world. The basic rights of citizens - property rights associated with personal identity are increasingly guaranteed.

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Fourth , the law restricting the division of common property and regulating cases where the agreement to divide common property between husband and wife is invalid contributes to stabilizing social relations and protecting the rights and interests of third parties.

3.1.2. Some problems and shortcomings when applying the 2014 Law on Marriage and Family on dividing common property between husband and wife

Firstly , the regulations on recognition of property regime according to the agreed regime are incomplete, only in framework form without specific data to ensure convenience for law application activities. Vietnam is a traditional country: husband and wife have the obligation to take care of each other, raise children, take care of their parents, and shoulder the family's common chores together. If husband and wife agree to only have private property and no common property, it will be difficult to ensure the implementation of the main goals when both parties build a family and a family following the Vietnamese tradition. During marriage, husband and wife have the right to agree to change the agreement on the property regime, but there are no strict binding conditions that reduce the stability of the couple's property regime [16].

Second , there are still no regulations on the right to request division of common property of husband and wife to a third person (right party) which is not consistent with civil law. According to the provisions of Article 224 of the 2005 Civil Code and Article 219 of the 2015 Civil Code, the third person has the right to request one of the joint owners to fulfill the payment obligation. If the requested person does not have personal assets or personal assets are not enough to fulfill the payment obligation, the third person has the right to request

Divide common property to receive payment and participate in the division of common property.

Third , determining the factors when dividing the common property of husband and wife: such as contributions and errors, does not have specific and clear criteria, making it difficult in the Court's adjudication work. Through judicial activities, it may be due to objective reasons or it may also be factors from the person conducting the proceedings or the participants in the proceedings, these causes have made the resolution of disputes difficult. arising related to the division of common property of husband and wife, encounter many difficulties.

In practice, there are many H&M cases related to the division of common property of husband and wife, often with lengthy appeals and protests due to the provision and collection of documents and evidence related to the origin of the wife's common property. husband, the common obligations of husband and wife are not complete and clear. For example, in First Instance Judgment No. 20/2016/HNGD-ST dated February 23, 2016 of the District People's Court

C. Mr. Nguyen Van H and Ms. Tong Thi T got married in 2000. In 2005, Mr. H and his wife T built a 3-storey house on the plot of land Mr. H's parents let them use but had not yet been granted a Certificate. receive land use rights. In 2008, Mr. H and Ms. T were granted a Certificate of land and housing use rights for the plot of land and the 3-storey house they built in the names of Mr. H and Ms. T. In 2015, the couple Having no children after many years of marriage, the relationship between husband and wife was no longer there, so they applied to the People's Court of District C for divorce. During the divorce settlement process at District C People's Court, Mr. H said that the land belonging to his parents was only for the couple to use and was not available to the couple. Mr. H's parents also declared that they had only allowed Mr. H and his wife to use this plot of land without giving them permission. Ms. T believes that Mr. H and Ms. T have been issued a Certificate in the names of Mr. H and Ms. T for this plot of land and house, so this is their common property. When divorcing, she asked to divide this property in half. Too

During the settlement process, the People's Court of District C also did not proceed with the request to provide evidence and collect sufficient evidence about whether Mr. H's parents donated the above plot of land to Mr. H and his wife, and Ms. T or not. Therefore, during the trial, based on the available documents, the Court declared the common property of Mr. H and Ms. T. When dividing the common property, this property was divided in half. Disagreeing with the decision of District C People's Court, Mr. H appealed the above judgment. Through this case, we can see that determining common property is not always simple, especially in cases where property was acquired before marriage and parents can give it to one spouse but without documents. prove; After marriage, property is registered in the names of both spouses - separate property becomes common property. Husband and wife, during a harmonious marriage, developed this property together. When divorce conflicts arise, the couple disputes assets, the grounds for determining whose assets are unclear, leading to prolonged conflicts.

Fourth , the issue of determining the value of common assets - valuing assets when dividing is also a difficulty in the application of law and the Court's adjudication. The determination of disputed value is determined according to the market value of the property upon division. However, in reality, determining the exact value of assets according to market prices is not simple. This is due to many reasons. Firstly, the assets being valued with assets that have transactions to compare and evaluate the value of the assets being valued often cannot be completely similar, so determining the value of the disputed assets that need to be divided is impossible. Exactly. Second, not everywhere property transactions happen regularly, especially with real estate. In many places, the real estate market has almost no transactions. Therefore, there is no basis for the Court or Valuation Council to determine the market value of the assets to be divided.

Fifth , determining movable property as common property of husband and wife often faces many difficulties, especially in cases where movable property does not require ownership registration.

Sixth , regulations on the division of common property of husband and wife when one spouse dies first or is declared dead by the Court. The law implicitly stipulates that if husband and wife do not agree, their common property will be divided in half. This principle contains many inadequacies, especially in cases where husband and wife have contributed greatly to creating, maintaining, and developing common assets. There is a large difference in common assets, which is also one of the causes of property disputes. lengthen. For example, the case requires dividing the common property of the next couple. In 2000, Mr. A married Ms. B and gave birth to a child, child X. In 208, due to conflicts, Mr. A and his wife divorced her.

B. In 2009, he married Ms. both have the common names of Mr. A and Ms. C, while Ms. C only stays at home to take care of the children and do housework. In 2014, Mr. A died in a traffic accident. Ms. B represents Mr. A and Ms. B's grandchild The Court relied on Clause 2, Article 66 of the 2014 Law on Marriage and Family to divide the common property of Mr. Anh and Ms. C in half. Accordingly, the Court divided the common property of Mr. A and Ms. C in half, including 3 houses. in the names of Mr. A and Ms. C. Ms. B finds this completely unreasonable because Mr. A's main effort was to create common assets, including 03 houses named after Mr. A and Ms. C. No. Agreeing with the Court's decision, Ms. B appealed the verdict. Ms. B believes that, in the case of Mr. A and Ms. C divorcing like she divorced Mr. talent

common property of the couple. Mr. A was righteous in creating common property, so Mr. A received a portion of the property with a greater value than Ms. is well-founded and in accordance with the law, so we maintain our opinion. Thus, it can be seen that the legal regulations are clear, but due to the determination of hard regulations, the litigants involved in the case find them unreasonable in practice, leading to disputes and appeals. Therefore, it can be seen that although the court in this case applied the law uniformly and accurately, it was still appealed because it was unreasonable.

3.2. Some recommendations to improve legal regulations on the division of common property between husband and wife.

3.2.1. Complete legal regulations on determining common property of husband and wife

In the process of applying the Law on Human Resources and Family in 2000, amending and supplementing and replacing it with the Law on Human Resources and Family in 2014, many guiding documents have revealed many inadequacies and many regulations that are not consistent with reality when resolving disputes. Disputes related to marital and family relationships in general and disputes related to the division of common assets of husband and wife in particular. The 2014 Law has defined common property of husband and wife according to the listing method. Accordingly, common property of husband and wife includes: property created by husband and wife, income from labor, production and business activities, profits, income arising from separate property and other legal income. during the marriage period, except in cases where common property of husband and wife has been divided during the marriage period according to the provisions of the Law on Marriage and Family; Property that husband and wife jointly inherit or gift together and other property that husband and wife agree on are common property. Land use rights that husband and wife acquire after marriage are common property of the couple unless the husband or wife inherits it separately or is gifted to them.

private or acquired through transactions with private property [39, Clause 1, Article 33]. This is a basic issue that needs to be determined when there is a request to divide the common property of husband and wife. Accurate determination of common property of husband and wife is the basis and prerequisite for proper division of common property of husband and wife. Therefore, it is necessary to improve the legal provisions related to the determination of common property of husband and wife.

First , the law recognizes the property regime by agreement. However, the regulations related to property agreements between husband and wife are still general and unclear. The law needs to have guidelines for husband and wife to easily apply in agreeing to determine which property is common property and which property is the separate property of the husband and wife; The basis for determining property is separate property or common property of husband and wife if the property is formed and developed during the marriage period; cases, conditions, principles for dividing common property of husband and wife (if any)... The spousal agreement on property - marriage contract needs to be stable; The agreement to amend and supplement the content of the marriage contract must meet certain conditions to contribute to stabilizing social relations and avoid affecting the legitimate rights and interests of third parties.

Second , the regulations on merging separate property of husband and wife into separate property of husband and wife need to clearly stipulate the format of the agreement to merge that property. For relationships that merge private property into common property before the 2014 Law on Marriage and Family takes effect as well as other regulations on property registration, lawmakers need to develop precedents to create regulations. General principles help to have a basis for determining common property and separate property in such situations based on the principle of speculation [19, pp. 47- 49, 50].

Third , for assets of high value, real estate, cars, etc., the law on property registration needs to clearly stipulate the recognition of joint ownership of

co-owners (both husband and wife) if it is common property. The law needs to stipulate simple and convenient administrative procedures so that property ownership registration can be convenient and quick. Thus, people in general and husbands and wives in general really want to register common property ownership to ensure their rights and avoid disputes, avoiding the psychology of being afraid of complicated administrative procedures. do not want to exercise their rights in reality.

3.2.2. Regulations on the right to request division of common property of husband and wife to a third person (right party)

In the regulations on cases where the agreement to divide common property between husband and wife is invalid, the 2014 Law on Marriage and Family gave the right to the entitled party to request the Court to declare the agreement to divide common property between husband and wife. husband during the marriage period is invalid if the purpose is to avoid performing obligations. However, it does not stipulate that they have the right to request division of common property of husband and wife so that the party with separate obligations to the third person with property can fulfill their obligations. This has been stipulated in Article 224 of the 2005 Civil Code and Article 219 of the 2015 Civil Code. Thus, it can be seen that the provisions of the Law on Marriage and Family are not consistent with the provisions of the general law. Regarding this issue, Author Nguyen Hong Hai also has a similar opinion: " The law needs to clearly stipulate: In cases where the person with rights has enough evidence that the husband and wife do not have an agreement or do not request the Court dividing common property during the marriage period for the purpose of avoiding performing property obligations, the person with rights can request the Court to divide the common property of the couple during the marriage period to get their share of property. The wife or husband is obliged to pay the debts. The request of the obligee will not be recognized by the Court if it seriously affects the obligor's family interests or his/her identity.

Division of common property between husband and wife according to the Law on Marriage and Family 2014 - 9

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