Division of common property of spouses according to Vietnamese law - Practical application and improvement direction

Is it necessary to follow the instructions in Clause 1, Article 13 of Decree No. 70/2001/ND-CP? These issues are still left open in current law and couples are always at risk of falling into property disputes when divorcing.

For example, Ms. Nguyen Thi Kim Dung and Mr. Dam Ngoc Anh got married in 2001. In 2008, they filed for divorce at the Hai Ba Trung District People's Court. They agreed on their children and property. Regarding real estate, they are the owners of two houses: house number 38, lane 461, group 36B, Minh Khai street, Vinh Tuy ward, Hai Ba Trung district, Hanoi city (currently, Mr. Dam Van Van and Ms. Le Thi Vinh, Mr. Anh's parents, are living there) and house number 6, lane 461, Minh Khai street, Vinh Tuy ward, Hai Ba Trung district, Hanoi city (where they are living). Ms. Dung requested to divide house number 6 to live with her son. However, Mr. Van and Ms. Vinh affirmed that the two houses belonged to them because when they bought the house, they spent 2/3 of the money, and the remaining 1/3 was paid by Mr. Anh himself when he worked and paid the debt. Furthermore, one house was bought in 1997, one house was bought in 2000, at that time Ms. Dung was not married to Mr. Anh, Ms. Dung herself also stated that she did not know who bought the two houses and for how much money?

In the above situation there can be two opposing views:

First view : The two houses No. 38 and No. 6 mentioned above are the joint property of Mr. Anh and Ms. Dung because their names are on the land use right certificate. In this case, when declaring to issue the "red book" in 2002 (house No. 38) and in 2003 (house No. 6), Mr. Anh voluntarily included his personal property (existing before marriage) into the joint property of the couple. This voluntary action is demonstrated by the fact that he was the one who declared the land use right and wrote the names of both husband and wife in the declaration.

Second view: The two houses mentioned above are still Mr. Anh's separate property because they were both owned before the marriage and Mr. Anh also did not have a document showing that he voluntarily entered his separate property into the common property according to the provisions of Clause 1, Article 13 of Decree No. 70/2001/ND-CP.

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Both of the above viewpoints, although contradictory in their assessment, are based on reasonable arguments that are difficult to refute. In fact, the judgment No. 36/2008/HNGD-ST dated September 30, 2008 of the Hai Ba Trung District People's Court resolved the case according to the first viewpoint, rejecting the request to claim the house of Mr. Van and Ms. Vinh; determining that the two houses No. 38 and No. 6 are the common property of Mr. Anh and Ms. Dung with the following arguments:

Firstly , the fact that Mr. and Mrs. Van and Vinh gave their son money to buy a house is considered giving it to their son because Mr. Anh was the one who directly conducted the transaction, made the sales contract and the name change procedures,... when Mr. Anh declared the land use rights registration under the names of Mr. Anh and Ms. Dung, the grandparents knew but did not object.

Second, Mr. Anh's declaration of land use rights registration under the names of Mr. Anh and Ms. Dung is considered evidence that he voluntarily added his personal assets to the common assets and this is in accordance with the law.

Through the above case, we see that currently, the 2003 Land Law does not stipulate that the person applying for a land use right certificate, when declaring the names of both husband and wife, must have a document proving that it is separate property or common property. If it is separate property, there must be a document voluntarily entering the separate property into the common property of the property owner. Therefore, the land use right certificate issued to the couple is legal and is a legal " certificate " identifying that the property is the common property of Mr. Anh and Ms. Dung. However, according to Clause 1, Article 13 of Decree No. 70/2001/ND-CP, the two houses No. 38 and No. 6 and the land use right are Mr. Anh's separate property because there is no document entering the separate property into the common property with the signatures of both husband and wife. Thus, there is no consistency or synchronization between the provisions of the Land Law and the Law on Marriage and Family, which on the one hand causes many difficulties and inadequacies in the application of legal provisions in practice. On the other hand, due to the differences between the laws, it can lead to a situation where the same case is resolved differently in different courts, causing the rights and legitimate interests of the parties to not be guaranteed.

Determining common property in case of husband and wife living with family

According to Vietnamese customs, after marriage, most men and women usually live with the husband's family (some live with the wife's family). After marriage, husband and wife contribute their efforts to build their common life and the husband's and wife's family. In such circumstances, the assets created are not considered the property of the couple but are considered the common property of the extended family. Therefore, these assets, especially those of great value, according to customs, often "bear the name" of the family (owned by the household) or the head of the extended family.

When a couple divorces, the division of the couple's common property requires first to be separated to determine the couple's share of the common property in the family's common property. This issue has been provided for in Article 96 of the 2000 Law on Marriage and Family in two cases: when the couple's property in the common property cannot be determined and when it can be determined by part. It will be easier for the couple and the Court when the couple's property in the common property can be determined by part, then it is only necessary to deduct the couple's share of the family's common property from the family's common property according to the determined part to divide it between the husband and wife. However, in the case where the couple's property in the family's common property cannot be determined, at this time, the determination of the common property first depends on the agreement between the couple and the family. If no agreement is reached, the Court must resolve the matter. Husband and wife, family and the Court will have to base on the contribution of husband and wife to the creation, maintenance and development of the family's common property to determine the common property of the husband and wife. Husband and wife must prove their contribution and quantify that contribution in the family's common property to serve as a basis for agreement and division. In theory, this seems simple, but in reality, evaluating and converting an abstract value system such as contribution or labor results into a specific amount of property is extremely difficult, requiring

requires the goodwill of the members of the extended family. Therefore, many husbands and wives, especially the wives, have to accept "breaking up" and leave empty-handed because they cannot prove their contribution to the family's common assets.

The divorce of Ms. Le Thi L and Mr. Vo Hong P (Vi Dong commune, Vi Thuy district, Hau Giang province) is an example. In 1995, the couple got married and lived with the husband's parents. Due to conflicts, they divorced in 2010. Their common property was determined to include 10 taels of 24K gold and the couple reached an agreement. However, Ms. L requested to be divided 7 more hectares of rice fields under her father-in-law's name because, according to her, she had been a daughter-in-law for more than ten years, contributing to the economic life of her husband's family. During their time together, they and her husband's parents built a house, bought amenities, and in 2008, they bought another 18 hectares of land under her father-in-law's name. However, the first instance judgment did not accept her request to divide the land. Ms. L continued to appeal to request the division of the land. At the appeal hearing:

The judge presiding over the trial commented: after getting married, Mr. P and Ms. L lived with her husband's family, and her father-in-law transferred more land during this time and had his name on the land use rights certificate with an area of 15,216 m2 . Ms. L could not prove that the transfer of her father-in-law's land was her contribution, how much of her contribution, and how much of her effort was in the assets under her father-in-law's name, so there was no basis to consider her appeal request [58].

Thus, although the law stipulates, proving the contribution to determine the joint property of the couple in the joint property of the extended family is in fact very difficult, especially for women who only do housework and farm work without a stable income generating job outside of society, such as the case of Ms. L in the above judgment. Determining the joint property of the couple in this case is even more difficult when the husband or wife does not ask for the division.

part of the family's common property. In the above case, the Trial Panel requested Ms. L to prove her contribution in a specific and clear manner, such as how she contributed, how much effort... which was impossible because in her situation - living with her husband's family, doing housework, and farming with the family, it was impossible to quantify how much money and effort she contributed so that her father-in-law could afford to buy more land.

Thus, it can be said that although the law has provisions, in the absence of specific norms to help quantify the contribution of each person to the formation and development of common property, the process of applying legal provisions on determining common property of spouses encounters many difficulties in practice.

Identify common assets such as housing and land use rights

Among the common property disputes between spouses when divorcing, disputes related to land use rights and housing are common and also the most intense disputes. Housing and land use rights are valuable assets, for many families it is the entire fortune accumulated over many years. When divorcing, not only the spouses are in conflict, even the parents of the wife (husband) are willing to participate in the "battle" for land use rights and home ownership. According to the law, housing and land use rights are types of assets that must be registered for ownership and usage rights, but in reality, determining ownership of housing and land use rights when spouses divorce is not simple. Because it is a valuable asset, the time it takes to form the asset is often long, and the origin of this type of asset in each historical period is quite complicated, when divorcing, most couples rarely reach a consensus on dividing this type of asset in general as well as determining the common property of the couple in particular.

In many cases, housing and land use rights are the result of a long period of effort, hard work and savings by the couple. Sometimes, these assets are given as gifts or inherited... Therefore, when resolving the issue of dividing common property upon divorce, if the Court does not carefully verify the source,

The origin of the house and land to determine whether the property is jointly owned by husband and wife or not, but only based on the certificate of house ownership and land use rights, can easily lead to errors, affecting the rights of the husband and wife as well as other related people.

For example, Ms. Nguyen Thu Lan and Mr. Tran Huan Dung got married legally in 1985. After getting married, they lived with their husband's parents (Mrs. Tam and Mr. Nga). In 1988, Mrs. Tam retired. She told Ms. Lan that if she was granted a house according to her standards at the 108 Institute, she would give it to them (Ms. Lan also worked at the 108 Institute). She then wrote an application for a house. In 1990, the 108 Institute allocated a house of 18 square meters at A6 of the 108 Institute's housing complex but did not list anyone's name. Ms. Lan herself listed Ms. Tam's name in the house allocation decision. After being granted the house, they lived directly in that house (Ms. Tam and Mr. Nga lived elsewhere). In 1997, the agency cleared the land and transferred the couple to room 106N35 of Institute 108, No. 39 Tran Khanh Du Street, Hanoi City, area 40.02m2 . After that, the couple repaired and redid the interior and encroached on the 15m2 of free space . When completed, Mrs. Tam and Mr. Nga declared that they would give the couple the above house and she gave money to Mr. Dung and her father-in-law to buy the house in 1999. When the couple divorced, Mrs. Tam and Mr. Nga demanded the house back.

Based on the Decision on the allocation of the house of Institute 108 named after Ms. Tam, the first instance judgment of the Hanoi People's Court and the appeal judgment of the Supreme People's Court of Appeal (SPC) both determined that room 106N35 of Institute 108 belongs to Ms. Tam and Mr. Nga. Ms. Tam and Mr. Nga are responsible for paying you the amount you spent on repairs and upgrades. Ms. Lan is allowed to stay in the third room while looking for a new place to live.

The two above judgments were annulled by the Supreme People's Court's Council of Judges regarding the division of property because they did not clearly determine the common property of Mr. Dung and Ms. Lan, as shown in the following aspects:

- It is not clear whether the initially granted area of 18 m2 was according to Ms. Tam's standards or took into account the fact that Ms. Lan - her daughter-in-law is working at the Institute;

- When converting a house, is increasing the area from 18 m2 to 40 m2 a common standard or taking into account the number of members living in the house;

- The additional area of 15 m2 due to the expansion not included in the ownership certificate has not been considered;

- The house liquidation purchase policy is only applied to the subjects who are directly using the house. Mr. Dung and Ms. Lan are the ones who have been directly living in the house since it was granted and converted. Mr. and Mrs. Tam and Nga have never lived there, so they are not the subjects who are eligible for the above liquidation purchase policy.

The above case shows that in reality, determining the common property of a couple related to housing and land use rights is very difficult and complicated. The path to proving that a property is the common property of a couple is very arduous because in many cases, the parents of the wife or husband declare to give it to them but do not make a contract, do not go through the name change procedures according to the law... when the couple divorces, the parents "change their mind" and do not give it anymore or declare that it is only for their son or daughter, not taking into account that for a long time the couple has lived and built a house on the land, exercising the rights of the owner as a real owner. In the above example, Ms. Tam and Mr. Nga declared to give Mr. Dung and Ms. Lan the house but did not make a gift contract and do the name change procedures according to the law. Therefore, according to the provisions of the 1995 Civil Code and the 2005 Civil Code , "the donation of real estate must be made in writing, notarized, authenticated or registered, if according to the provisions of the law on real estate, ownership rights must be registered" [33, Article 463] [38, Article 467], it is clear that the donation of a house in the form of a "declaration" by Ms. Tam and Mr. Nga cannot be the basis for determining that apartment 106N35 is the common property of Mr. Dung and Ms. Lan. However, due to customs, lack of legal knowledge... the situation of donating houses and land use rights without valid documents is still very common in Vietnamese society, especially in cases where parents give them to their children. Therefore, doing

How to judge a case in accordance with legal regulations while still ensuring the legitimate rights and interests of spouses is a major difficulty for courts at all levels and requires the court to carefully consider each issue and related details of the case when trying the case.

Determining the common property of a couple for property such as a house or land use rights is even more difficult in cases where many couples have previously found ways to "circumvent the law" to evade taxes, or to rationalize paperwork and procedures, and now they have fallen into a "half-crying, half-laughing" situation. There are cases where, when buying a house or land from the husband's or wife's parents, they agree to make a gift contract to one of the couple, the child, to evade taxes. When divorcing, the husband or wife whose name is on the gift contract "forgets" the "implicit" agreement and "challenges" it, leaving the other person to prove that the property is common property.

For example, the divorce case between Mr. Ha Mai Thanh and Ms. Pham Thi Lien. This is a divorce case with a complicated common property dispute surrounding the determination of common property including house, land and debts. Regarding the right to use the land and house on the land at 4 Tran Hung Dao Street, Hai Duong City, Hai Duong Province. Mr. Thanh and Ms. Lien both agree that the origin of the land and house belongs to Ms. Lien's biological parents, however, each side has a different explanation for the "path" of transferring ownership and right to use the land and house to Mr. Thanh and Ms. Lien.

According to Mr. Thanh, in 1998, Mr. Thuan (Ms. Lien's biological father) made a document agreeing to give the property (1/2 of the value of the house and land) and Ms. Thuan's siblings made a document transferring the inheritance rights to the inheritance of Ms. Thuan's mother to Ms. Thuan for the purpose of evading land use rights transfer tax. In fact, the couple bought the house and land for 100 taels of gold. The couple paid off the above amount and they were granted a certificate of house ownership and land use rights No. 000268 dated May 15, 1998 in the names of Mr. Ha Mai Thanh and Ms. Pham Thi Lien. Therefore, when divorcing, he requested to determine that the house and land at No. 4 Tran Hung Dao Street, Hai Duong City are the common property of the couple to be divided among them according to the law. However, Mr. Thanh did not provide evidence of the purchase and sale and payment for the purchase and sale.

Division of common property of spouses according to Vietnamese law - Practical application and improvement direction - 10

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