Division of common property of spouses during marriage under Vietnamese law

Supplementing regulations on the legal consequences of restoring the common property regime in cases where spouses agree to restore a part of the property divided during the marriage, this part of the property will belong to the common property of the spouses, the remaining part that is not restored will still belong to the separate property of each spouse. In case of request to restore all the divided common property, the common property regime of the spouses will be restored.

3.2.1.2 On the rights and obligations of spouses regarding common property, common children and common life after dividing common property

According to the law, the common property of a married couple is jointly owned, so the couple has equal rights and obligations in possessing, using and disposing of the common property regardless of the origin or contribution of the couple to the common property. However, in reality, after dividing the common property during the marriage, the implementation of the rights and obligations of the couple encounters many difficulties and obstacles. Therefore, the law needs to have specific adjustments as follows:

Firstly , the law needs to supplement specific regulations on determining family needs.

The criteria for determining “ family needs ” are not currently recognized by law. A family is not just two individuals, but also many other members, so the needs of the family are not only the individual needs of the husband and wife, but also the needs of all family members. To contribute to building a prosperous, happy family and stable marital and family relations, the law needs to provide criteria to determine the essential needs of the family. Family needs are the natural demands of family members, including both material and spiritual needs. Therefore, the law needs to provide criteria for determining family needs, but they must be consistent with social norms and ethics and consistent with relevant legal provisions.

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Second , on the obligations of the family after dividing common property during marriage. Current law does not have specific regulations on this case, so in reality, it does not ensure the interests of family members. After dividing common property during marriage to fulfill civil obligations to others or for legitimate reasons, some people no longer fulfill their common obligations to the family, leading to disputes over the performance of common obligations of husband and wife. However, in reality, the Court has no legal basis to resolve this issue, so this issue remains open. Therefore, the judgment on dividing common property of husband and wife during marriage often does not mention the obligations of husband and wife to the family after the division. Therefore, the law needs to supplement regulations on the obligations of husband and wife to the family after dividing common property during marriage.

The completion of legal regulations related to the rights and obligations of spouses regarding common property is of great significance in protecting the rights and interests of family members, and at the same time creating a legal basis for the court to specifically determine the obligations of each spouse related to the performance of common family obligations.

3.2.1.3 On the principles of dividing common property of spouses during marriage

According to the principles of the 2000 Law on Marriage and Family, “ dividing in half ” the common property of spouses is only applied in cases of divorce, but does not provide for the division of common property during marriage and the division of common property when one spouse dies first. Therefore, for requests to divide common property during marriage, the court can divide it however it wants, leading to arbitrary and inconsistent application of the law. Therefore, the 2000 Law on Marriage and Family needs to inherit the 1986 Law on Marriage and Family, providing for the principle of dividing common property in half for all three cases. This is the legal basis.

It is important to apply the law to resolve the requests of the spouses in a unified manner, ensure the division of the spouses' property in a fair and objective manner, ensure the principle of equality between spouses in the possession, use and disposal of common property, and protect the legitimate rights and interests of each spouse.

3.2.1.4 On court recognition of the division of common property during marriage and documents restoring the common property regime of spouses

The 1986 Law on Marriage and Family stipulates that the division of common property between spouses while the marriage still exists can be agreed upon by the spouses but must be recognized by the court. Meanwhile, the current Law on Marriage and Family stipulates that the division of common property only requires the spouses to agree with each other without requiring recognition from anyone. This provision has brought absolute freedom to spouses in deciding on common property, but at the same time has also led to a situation where agreements on the division of common property are made to avoid civil enforcement with others.

Current law stipulates that spouses who have the right to divide common property during marriage also have the right to restore the common property regime of spouses. Restoration of the common property regime is subject to the agreement of the spouses and must be made in writing, without the need for any agency to recognize, notarize or certify. Therefore, there is no legal basis to resolve disputes over the property of spouses after the division. To overcome the above situation, the 2000 Law on Marriage and Family needs to supplement the provision that the agreement to divide common property during marriage as well as the restoration of the common property regime of spouses can be agreed upon but must be recognized by a competent State agency, specifically the Court and the notary agency. This will minimize the acts of spouses taking advantage of the division of common property to disperse assets, evading the performance of civil obligations with related third parties.

3.2.1.5 Regarding the determination of “other legitimate reasons”

The 2000 Law on Marriage and Family stipulates three reasons for dividing the common property of spouses during marriage. However, “ other legitimate reasons ” are stipulated in a general manner, and there are no specific instructions. “ Legitimate reasons ” is a provision inherited from the 1986 Law on Marriage and Family and is guided in detail at Point b, Section 3 of Resolution No. 01/1988/NQ-HDDTP dated January 20, 1988 of the Council of Judges of the Supreme People’s Court, which stipulates that “ while the marriage exists, Article 18 allows the division of the property of spouses if there is a legitimate reason (such as if the spouses are not compatible but the children are grown up and do not want to divorce but only want to live separately, therefore one or both parties request to divide the property, the property will be divided as in a divorce case ) [40]. Apart from the above guidance in Resolution 01/1988/NQ-HDTP, there is no document explaining the legitimate reasons. In reality, when a couple encounters a number of reasons such as the husband/wife committing adultery, giving property to another person, or one spouse destroying property, gambling, drug addiction, betting, etc., the other spouse requests to divide the common property during the marriage. The division of common property during the marriage for the above reasons stems from the legitimate interests of the family, the rights of the husband and wife and of a third party without violating the law and social ethics, so it is necessary to recognize their division of common property. In such cases, the law needs to recognize their agreement to divide common property as well as the right to request the Court to divide common property during the marriage. Therefore, the law needs to have provisions guiding the cases considered to have " legitimate reasons " when dividing the common property of the husband and wife during the marriage.

3.2.1.6 On the right to sue a third party related to the common property of the spouses

Current Marriage and Family Law only recognizes the rights of husband and wife or

of both spouses requesting the court to divide the common property during the marriage. The right to sue of a third party related to the common property of the spouses is not recognized. This is completely consistent with the legal principles. However, practical application has shown that the problems affect the rights of a third party related to the common property of the spouses. Because there are cases where the wife or husband with the property obligation does not have or does not have enough separate property to pay the debts and the spouses do not have an agreement that those separate obligations are only performed by one party, and do not request the court to divide the common property for the purpose of avoiding the performance of civil obligations to others. In this case, if the right to sue of the third party involved to take the common property to ensure the performance of the obligations is not recognized, their interests are not guaranteed. Therefore, the Law on Marriage and Family needs to consider recognizing the right to sue a third party with rights and interests related to the common property of the spouses and to request the court to divide the common property during the marriage, if this lawsuit does not seriously affect the interests of the family of the person with the obligation. Therefore, it is necessary to recognize the right to sue a third party with rights and interests related to the common property of the spouses.

3.2.2 Things to note when resolving the division of common property between spouses during marriage

3.2.2.1 At Court

Normally, when a couple cannot reach an agreement on the division of the combined common property during the marriage, they request the Court to resolve it according to civil procedure. However, according to the author's research, most of the time when a couple requests to divide the common property during the marriage, when resolved in court, it is often resolved in the direction of the couple reaching an agreement and withdrawing the request for division or in the direction of requesting a divorce and dividing the property.

common property. The reason is partly due to the limited awareness of the people, but partly comes from the subjective perception of the court staff who handle requests for division of common property during marriage. Because they realize that the provisions of the current law on division of common property during marriage are lacking, incomplete and difficult to apply. If the case is accepted and resolved to divide common property when the marriage still exists, it is easy to appeal for a long time. This is not guaranteed to meet the legitimate wishes of many couples, and is not in accordance with the spirit of the provisions of the law. Therefore, in addition to raising legal awareness for the people, it is also necessary to raise the awareness of court staff to help couples exercise their rights and obligations regarding the unified common property, both ensuring the reasonableness with practical requirements and ensuring the legality of legal provisions.

3.2.2.2 At the Notary Office

- Publicly post the agreement on division of common property as well as the document restoring the common property regime of spouses during marriage.

To ensure the legitimate interests of third parties related to the common property of spouses, the Law on Marriage and Family needs to add a provision that the written agreement on division of common property and the written agreement on restoration of the common property regime of spouses during marriage must be publicly posted at the place of permanent or temporary residence, as with the agreement on division of inheritance.

- Specific regulations on taxes and fees related to divided assets when spouses divide common property during marriage.

In order to limit the situation where couples "avoid" the implementation of agreements on dividing common property of spouses, which is common in reality, implemented through other forms of documents such as commitment documents on separate property, donation contracts, authorizations, etc. Relevant legal documents, specifically the law on personal income tax or guiding documents and Decrees regulating registration fees, must provide for additional cases of dividing property.

Common property acquired during marriage (for real estate and other assets that require ownership registration) is exempt from tax and does not have to pay registration fees.

- Raising legal awareness for Notaries at Notary offices

Agreements on division of property between spouses as prescribed by law can be notarized, except for some agreements that are required by law to be notarized. Currently, most people's awareness of the law in general and the law on marriage and family in particular is not high, so when there is an agreement on division of common property during marriage, most of them are very afraid of having to do it at a notary office. To avoid the hassle of administrative procedures, many couples have committed that the property is their separate property, even though the origin of the property is the common property of the couple [49]. They have not yet seen all the consequences of committing to separate property during marriage, so when disputes arise, the parties often appeal for a long time. Therefore, to avoid such a situation and to ensure the rights of the spouses, when conducting notarization procedures related to the common property of the spouses, the notary must clearly explain to the spouses so that they can choose a method that is appropriate to the reality of the common property relationship of the spouses. Therefore, raising legal awareness among the notary team is necessary to ensure that the law in general and the division of common property during the marriage of the spouses are implemented.

3.2.3 Some measures to ensure effective division of common property during marriage

3.2.3.1 Improve the qualifications and capacity of the team working on resolving the division of common property between spouses during marriage.

Besides many reasons that make the trial of marriage and family cases in general and the settlement of the division of common property of spouses in particular

Particularly, there are many difficulties, retrials at many different levels are due to the lack of judges and the judges' qualifications have not been improved. The report of the court sector on the trial work of the 12th National Assembly term (from October 1, 2006 to October 1, 2010) shows that 497 cases of HM&F cases have been resolved, 460 cases have been overturned judgments and decisions of the People's Courts at all levels. The above situation shows that it is necessary to amend the provisions of the HM&F law, at the same time, it is necessary to pay attention to the training and improvement of professional qualifications of the court staff in general and the team of staff working on resolving HM&F cases in particular, including the division of common property of spouses during the marriage period to improve the effectiveness of the trial work of the Court. The Court sector needs to have a long-term strategy for planning and developing staff to keep up with the development of society, and at the same time have a coordination mechanism with other relevant agencies involved in resolving marriage and family cases in general and dividing the common property of spouses in particular.

3.2.3.2 Propagating and disseminating education on marriage and family law to raise people's legal awareness

One of the reasons why appeals and complaints are prolonged is because the level of awareness of the parties is still limited. There are many cases where courts at all levels have resolved the case in accordance with the provisions of the law, but they still do not agree with the decision, causing the case to be prolonged. Therefore, propaganda and dissemination of legal education on marriage and family in general and the division of common property of spouses during marriage in particular is necessary. This work must be carried out regularly and extensively at all levels, in all sectors, among the people, in schools and in each family [35] to raise people's awareness and move towards building a legal culture among the people.

Besides, it is necessary to complete the legal regulations of other legal sectors so that there is consistency among the legal sectors, helping the application of the law to be more unified, convenient and easier.

Division of common property of spouses during marriage under Vietnamese law - 14

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