Propose recommendations to improve the law on marriage and family in general, the law on division of common property of spouses in particular; solutions to put the 2014 Law on Marriage and Family into practice.
7. Structure of the thesis
In addition to the introduction, conclusion, and list of references, the content of the thesis includes three chapters:
Chapter 1: General theoretical issues on division of common property of spouses
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Chapter 2: Current status of regulations of the 2014 Law on Marriage and Family on the division of common property of spouses
Chapter 3: Practical solutions and directions for perfecting legal regulations related to the division of common property of spouses
Chapter 1
GENERAL THEORETICAL ISSUES ON DIVISION OF COMMON PROPERTY OF HUSBAND AND WIFE
1.1. Concept of common property of husband and wife
1.1.1. Joint property of husband and wife
The family is the cell of society. For a family to exist and develop, it is necessary to have material conditions - the economic foundation of the family, to support the family. To ensure material conditions for family life and to exercise the rights and obligations of caring for and raising children, supporting parents, etc., the husband and wife need property. The property of the husband and wife is an important source to serve the material and spiritual needs of the family. From the time of marriage, the husband and wife live together, shoulder the family's work, and together create common property to ensure the essential needs of the family, satisfy other material and spiritual needs of family members. The husband and wife take care of and help each other; raise and educate their children, etc. The common property of the husband and wife becomes the material basis for them to achieve these goals.
“ Property is wealth and material used for production and consumption purposes” [49]. Legally, property is the subject of ownership rights and the object of most civil legal relationships. However, property is a broad concept that is difficult to define specifically. The laws of countries often do not give a specific definition of property, but it is often understood through legal doctrines or indirectly through other regulations [24]. For example, the French Civil Code only states: “ property is divided into movable and immovable property ” [31, Article 156].
The 2015 Civil Code inherits the provisions of the 2005 Civil Code, using a list definition to determine property. Accordingly, “ Property is an object, money, valuable papers and property rights. Property includes real estate and personal property ” [40, Article 105]. Concept
The concepts and regulations on property and property rights in the Civil Law are the origin and basis for specialized laws to develop specific property concepts according to the nature of their respective branches of law. For example, the concepts of contributed capital in the Enterprise Law, common property of spouses, separate property of husband and wife in the Law on Marriage and Family, etc.
Before marriage, the property of the husband and wife is the separate property of each individual. From the time of establishing the marital relationship, the property issue between the husband and wife is bound: determining the common property of the husband and wife, the separate property of the husband and wife; the rights and obligations of the husband and wife in creating, possessing, using and disposing of this common property.
The property of a couple includes the common property of the couple and the separate property of the husband and wife. Within the scope of the research, the author only mentions the issue of the common property of the couple, so he does not analyze the separate property of the husband and wife.
According to Article 33 of the 2014 Law on Marriage and Family: “ 1. The common property of a married couple includes property created by the husband and wife, income from labor, production and business activities, profits and profits arising from separate property and other legal income during the marriage, except for the cases specified in Clause 1, Article 40 of this Law; property that the couple jointly inherits or is jointly given, and other property that the couple agrees is common property.
The land use rights that a husband and wife acquire after marriage are the common property of the husband and wife, except in cases where the husband or wife inherits them separately, is given them separately, or acquires them through transactions using separate property.
2. The common property of the spouses is jointly owned and used to ensure the needs of the family and to fulfill the common obligations of the spouses.
3. In case there is no basis to prove that the property that the husband and wife are disputing is the separate property of each party, that property is considered common property.”
The common property of a married couple must first of all be assets, that is, objects, money, valuable papers and property rights. The common property of a married couple includes real estate and personal property.
According to Article 214 of the 2005 Civil Code: " Property under the form of joint ownership is common property ". On the other hand, joint ownership of husband and wife is unified joint ownership, meaning that the ownership rights of the husband and wife are not determined for the joint property. The husband and wife have equal rights to the common property of the couple [39, Clause 2, Article 33; 40, Clause 1, Article 210 and Clause 1, Article 213].
Thus, it can be understood that: the common property of husband and wife is objects, money, valuable papers and property rights. The common property of husband and wife can include real estate and personal property. The common property of husband and wife is property in the form of joint ownership that can be divided. Husband and wife have equal rights and obligations to that common property.
1.1.2. Determining the common property of spouses
The laws of many countries in the world recognize the right of spouses to freely agree on the property regime, also known as a marriage contract or marriage agreement. “ A marriage contract is a document expressing the agreement of the married person or the spouses on their property regime in marriage ” [25]. Therefore, if there is a property agreement - marriage contract, the determination of the common property of the spouses depends on the content of the agreement of the marriage contract.
Previously, Vietnamese law only recognized the statutory property regime. The statutory property regime is a property regime in which the law has provided in advance the basis, origin, and composition of common and separate property of the husband and wife (if any); the rights and obligations of the husband and wife with respect to each type of property; the cases and principles of dividing the common property of the husband and wife; and the payment methods related to the common or separate debts of the husband and wife [13, p.35] .
Based on the conditions of socio-economic development, respect and protection of human rights, including the right to freely dispose of property as recognized by the 2013 Constitution, as well as the process of international integration and the practical needs of Vietnamese society, the 2014 Law on Marriage and Family has been issued, which has recognized and supplemented the property regime of spouses by agreement. It can be said that this is a new development step of the 2014 Law on Marriage and Family on the property regime of spouses in the Vietnamese legal system in general and the Law on Marriage and Family in particular. Accordingly, if a couple chooses the property regime by agreement, the determination of the common property of the couple; the separate property of the husband and wife must be based on the specific content of the established property agreement between spouses. In case the property agreement between spouses does not stipulate, it shall be based on the provisions of the corresponding law to determine [39, point a, clause 1, clause 2, Article 48 and Article 49 ].
In case the husband and wife do not have an agreement on property or the agreement is unclear or incomplete, the common property of the husband and wife is determined as follows: “ Common property of the husband and wife includes property created by the husband and wife, income from labor, production and business activities, profits and profits arising from separate property and other legal income during the marriage, except for the cases specified in Clause 1, Article 40 of this Law; property that the husband and wife jointly inherit or are jointly given and other property that the husband and wife agree is common property.
The land use rights that a husband and wife acquire after marriage are the common property of the husband and wife, except in cases where the husband or wife inherits them separately, is given them separately, or acquires them through transactions using separate property.
In case there is no basis to prove that the property that the husband and wife are disputing is the separate property of each party, that property is considered common property. ” [39, Clause 1, Clause 3, Article 33].
Thus, to determine the common property of spouses according to the law, it is based on three factors: the origin of the property, the time of property acquisition - the period of marriage and based on the principle of speculation.
Marriage period - basis for determining the common property of spouses.
According to the above provisions, we see that the most important basis for determining whether property is the common property of a couple or not is the birth and existence of the marital relationship - the marriage period. "Marriage period" is the period of time the marital relationship exists, calculated from the date of marriage registration to the date of termination of the marriage [39, Clause 13, Article 3]. The marriage period is calculated from the time the man and woman register their marriage - the time when the marital relationship arises before the law; the marriage registration must be recognized by a competent State agency in accordance with the correct procedures and conditions prescribed by law [16]. However, according to the 2014 Law on Marriage and Family, the marriage and family relationships established before the effective date of this Law shall be resolved by the law on marriage and family at the time of establishment [39, Clause 1, Article 131]. This provision is intended to resolve the remaining consequences of the “ de facto marriage ” situation in society before the Law on Marriage and Family 2000 and the Law on Marriage and Family 2014 were enacted. This is the situation where men and women live together as husband and wife, only having their wedding ceremony organized by their families according to custom but not yet registering their marriage. In order to create a legal basis for the Court to resolve disputes over personal status and property between husbands, wives and family members, through trial practice, the Supreme People’s Court has issued a number of documents guiding the resolution of this issue: Circular No. 112-NCPL dated August 19, 1972 of the Supreme People’s Court guiding the settlement of civil disputes over marriages that violate the marriage conditions under the Law on Marriage and Family 1959; Circular No. 81-DS dated April 27, 1981 of the Supreme People's Court guiding the settlement of inheritance disputes, recognized that " de facto marriage " means that husband and wife are still entitled to inherit each other's property according to the law; Resolution No. 01/NQ-HDTP dated January 20, 1988 of the Supreme People's Court
guiding the People's Courts at all levels on some provisions of the 1986 Law on Marriage and Family. In general, these legal documents all recognize "de facto marriage" in cases where both the man and woman have fully complied with other marriage conditions, only violating the marriage registration procedures. Since the family organized the wedding ceremony according to customary practices, they have actually lived together openly, shared the family's work and have been recognized by the family and society as husband and wife. A recognized de facto marriage has the same value as a legal marriage, and the marital relationship is protected before the law [16].
Since the promulgation of the Law on Marriage and Family in 2000, our State has advocated the elimination of the situation of “ unregistered marriage ”. “ Men and women who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife ” [35, Clause 1, Article 11; 39, Clause 1, Article 9]. However, in order to completely resolve the situation of “ de facto marriage ” left by history, to ensure the legitimate rights and interests of couples in “ de facto marriage ”; to create a solid legal basis when resolving disputes about de facto marriage and to apply the law uniformly, our State has issued a number of legal documents: Resolution No. 35/2000/QH10 dated June 9, 2000 of the National Assembly on the implementation of the Law on Marriage and Family in 2000; Decree No. 77/2001/ND-CP of the Government on guidance on marriage registration according to Resolution No. 35/2000/QH10; Resolution No. 02/2000/NQ-HDTP dated October 23, 2000 of the Supreme People's Court's Judicial Council guiding the application of a number of provisions of the 2000 Law on Marriage and Family; Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3, 2001. Thus, the "marriage period" can be established at the following times:
If a man and a woman have lived together as husband and wife since before January 3, 1987; they fully comply with other conditions for marriage, only violating the marriage registration procedure, their marriage relationship is considered a " real marriage".
In this case , they are legally recognized as husband and wife from the date of " living together as husband and wife ".
If a man and a woman live together as husband and wife from January 3, 1987 to January 1, 2001, if they meet the conditions for marriage according to the law, they are obliged to register their marriage by January 1, 2003. If they register their marriage during this period, their marriage will be confirmed from the day they live together as husband and wife. If they do not complete the marriage registration procedure within this period (by January 1, 2003, they still have not registered their marriage according to the law), they will not be recognized as husband and wife.
From January 1, 2001 onwards, except for the above two cases, the marriage period is calculated from the date the man and woman register their marriage according to the provisions of law.
The date of termination of marriage is the date on which the husband or wife dies or is declared dead by the Court. In the case of divorce, the marital relationship ends from the date the Court's judgment or decision determining their divorce becomes legally effective.
Thus, the basis for establishing the common property of the spouses must first be based on the " marriage period " of the spouses. All assets created by the spouses during this marriage period are considered to be the common property of the spouses, except in cases where the spouses divide the property during the marriage period according to the provisions of Article 40 of the Law on Marriage and Family 2014 or have an agreement on the property of the spouses that stipulates otherwise.
The origin of assets to determine the common property of the spouses.
Property created by the husband and wife, income from labor, production and business activities and other legal income of the husband and wife during the marriage .