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APPENDIX
(Excerpt from the interview with Mr. Vo Dinh Nho - Deputy of Notary Office No. 4, Hanoi City on some issues of dividing common property of spouses during marriage - April 10, 2011)
Question 1: Sir, according to the provisions of the Law on Marriage and Family 2000, spouses have the right to agree to divide common property during marriage. The agreement can be notarized at the request of the spouses or according to the provisions of law. So, in the past, has Notary Office No. 4 often received requests to notarize agreements to divide common property during marriage?
Mr. Vo Dinh Nho: Notarized documents on property agreements between spouses in general and notarized documents on division of common property between spouses during marriage account for a very small percentage compared to the number of other types of documents such as gift contracts, mortgages, etc.
Question 2: Among the cases of division of common property of spouses that the Office has notarized, in your opinion, what is the main reason given by couples for division of property?
Mr. Vo Dinh Nho: There are many reasons why couples decide to make a written agreement to divide common property while the marriage still exists, such as emotional breakdown, preparing for separation or divorce... however, the most common is to facilitate property management.
Question 3: Article 29 of the 2000 Law on Marriage and Family stipulates the reasons for spouses to agree or request the Court to divide common property, including: Husband and wife invest or do business separately; perform separate civil obligations; have other legitimate reasons. According to what you just said, most of the reasons given by spouses do not fall into the cases of investing or doing business separately or performing separate civil obligations. So, is it considered an "other legitimate reason" as prescribed in Article 29 above?
Mr. Vo Dinh Nho: It is true that in reality, spouses often give reasons other than investing in their own business or fulfilling their own civil obligations. There are currently no specific regulations in the law and guiding documents regarding whether those reasons are legitimate or not. Therefore, when doing it in practice, we have no basis for assessment.
Question 4: According to the law, the content of the division agreement shows the divided property and the remaining undivided property (if any). Sir, in the cases of division that the Office has notarized, do couples usually choose to divide all or only a part of the existing common property?
Mr. Vo Dinh Nho: Husband and wife have the right to choose whether to divide their common property, to divide part of it or to divide all of it. And in reality, husband and wife usually only make a written division for some valuable assets, the most common of which are the division of housing and land use rights.
Question 5: In your opinion, does the number of agreements on dividing the common property of spouses during marriage (as mentioned above) honestly reflect the need to divide the common property of spouses?
Mr. Vo Dinh Nho: The need to divide the common property of husband and wife during the marriage period of husband and wife is quite high nowadays, however, not all cases of husband and wife make an agreement to divide the common property. Many cases of husband and wife choose to make a commitment to the separate property of the husband and wife or make a contract to donate their ownership rights to the husband and wife...
Question 6 : What is your comment on current legal regulations on division of common property of spouses during marriage?
Mr. Vo Dinh Nho: In my opinion, many current legal regulations on the division of common property during marriage are not suitable for reality. For example, the regulations on the conditions for division: the law's reasons for dividing common property are redundant because in reality it is uncontrollable and is creating more fake transactions. In my opinion, the Law can remove the reasons for division, only requiring the spouses to guarantee that the division of common property is not aimed at evading civil obligations; in addition, according to current regulations, spouses only have the right to divide existing common property, not future property. I think the Law should expand the right for spouses to agree on future property, ensuring the principles of freedom, voluntary commitment, and agreement stipulated in Article 4 of the 2005 Civil Code and the right to have separate property of spouses according to Article 32 of the 2000 Law on Marriage and Family.
Thank you very much!