Division of Joint Property of Spouses During Marriage

against the legal heir of the husband or wife, unless this has been registered. Thus, under Japanese law, the grounds for determining the property of the spouses as stipulated in the marriage contract can also be changed to suit the reality of the creation, possession, use and disposal of property between the husband and wife [21].

Prenuptial Agreements in the United States. It can be said that in no other country is the issue of prenuptial agreements as popular as in the United States. In addition to prenuptial agreements, the United States also allows couples to make an agreement similar to a prenuptial agreement during the marriage. During the 18th century, the common law system did not allow prenuptial agreements because they believed that when two people got married, they became one and could not have a transaction when there was only one subject, another reason was that a married woman was not allowed to enter into contracts unless she was separated. By the mid-nineteenth century, some precedents in the United States allowed the existence of premarital agreements. In July 1983, a law on premarital agreements (Uniform premarital agreement Act, abbreviated as UPAA) was enacted based on the results of the precedents. UPAA was accepted in most states of the United States, while some remaining states had different or more special provisions than UPAA [32]. According to UPAA, premarital agreements in the United States have some characteristics. The parties agree in the premarital agreement with the following contents: the property rights and obligations of each party to the property; the right to dispose of property upon divorce, separation, death or any event; alimony of the husband and wife... In terms of form, the premarital agreement must be made in writing and signed by both parties and no further consideration is required for the premarital agreement. In terms of validity, the premarital agreement is only valid during the marriage period. After marriage, the premarital agreement can be amended by the parties by making an additional document. another copy and sign it, this amendment does not require another

However, under the laws of some states, a prenuptial agreement may automatically expire after 7 years of its existence or after the birth of the first child, or the prenuptial agreement may only be amended after 1.5 years of its existence [32].

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Thus, from the recognition of the marriage contract on the basis of the marriage contract agreement which includes the content of the division of the couple's common property. The division of the couple's property complies with the content of this agreement.

Second, the property of the spouses is determined according to the legal basis - legal property regime.

The legal property regime is a property regime in which the law specifically stipulates the basis for determining the property of spouses, the rights and obligations of spouses with respect to that property, as well as in the implementation of transactions between spouses and third parties [21] .

The statutory property regime is a solution recognized by lawmakers in all countries in the law on marriage and family. Some countries stipulate a statutory property regime as an alternative in cases where the spouses do not have a prenuptial agreement, or with the purpose of allowing the spouses to choose the property regime applicable to them (common in the law on marriage and family in Western countries such as France, Japan, Canada, Australia, Thailand, etc.) [21] . Article 1400 of the Civil Code of the French Republic stipulates: " The community property regime is established when there is no prenuptial agreement or when the spouses declare their marriage under the community property regime " [31] ; Some countries stipulate the statutory property regime as the sole basis for determining the property of spouses (common in the Marriage and Family Law of socialist countries such as Vietnam before the promulgation of the Marriage and Family Law 2014, China, the former Soviet Union, Cuba, etc.), Article 29 of the Family Law of the Republic of Cuba stipulates: The property regime of spouses is the common property regime according to the provisions of this Code. This property regime applies from the date the marriage is approved by the government.

recognized or from the date of cohabitation…; this property regime terminates when the marriage relationship ends regardless of the reason.

The legal property regime is regulated in many different forms, but in general it is often in two forms: Property regime according to community standards (community property regime) and property regime according to divisional standards (divisional property regime) [21] .

The recognition of the community property regime is based on the view that the interests of the spouses must be governed by the community nature of marriage and the common interests of the family. Therefore, the community property regime has the basic characteristic that in the ownership relationship between husband and wife, there always exists a common property and property obligations secured by the common property of the spouses. However, this property regime does not exist in a single form but is regulated in many different forms, mainly in the following three forms: Community property regime, community property and property regime, and community property regime.

The community property regime has the characteristic that the common property of the spouses is only determined for the properties that the husband and wife have acquired during the marriage; other properties, regardless of whether they are movable or immovable, that the husband and wife have acquired before marriage, or are inherited separately, or are given separately during the marriage, belong to the separate property of the husband or wife. This is a solution commonly prescribed in the laws on marriage and family of many countries. For example, Article 13 of the 1980 Marriage Law of the People's Republic of China stipulates: " The property created by the husband and wife during the marriage is the common property of the husband and wife. In addition, each party may have separate property other than the above provisions ". Article 1401 of the Civil Code of the French Republic also stipulates: Community property includes the common income of the husband and wife or the income

each person's own income during the marriage and derived from their business, as well as from savings gained from the profits and income from their separate property.

The regime of community of movable and created property also recognizes that in marriage there are common property and separate property of the husband and wife as in the regime of community of created property. However, the regime of community of movable and created property determines the property of the husband and wife based on the division of the property of the husband and wife as movable or real estate. Accordingly, the common property only includes the movable property of the husband and wife before and during the marriage, the benefits and real estate that the husband and wife buy with common property. The husband and wife have the right to own the real estate that existed before marriage and the real estate that the husband and wife inherit or are given to them separately during the marriage.

Unlike the two above community property regimes, the whole community property regime does not recognize the separate ownership of the husband and wife but only recognizes the joint ownership, according to which all assets of the husband and wife before and during the marriage belong to the common property. That provision comes from the concept that the common needs and common interests of the family are paramount, the property of the husband and wife is recognized and protected by law for that purpose, so all assets of the husband and wife before and during the marriage must belong to the common property, the right to own separate property is not recognized because it conflicts with the interests of the family. With the above characteristics, the whole community property regime is only suitable for the relationship between husband and wife and family in traditional society. In the current conditions of socio-economic development, when individual freedom is always promoted, the communal regime has revealed its fundamental limitations, because it does not guarantee the right to self-determination of property owners, especially when that property was created by the husband and wife before marriage, or the property was inherited or given to them; it also does not guarantee the

independence of husband and wife because they do not have private property to participate in social relations other than family relations; on the other hand, the application of the communal property regime in the current period can encourage pragmatic marital relations. Therefore, countries often do not choose this communal property regime.

The division of property regime is a form of legal property regime, in which there is no common property regime between husband and wife, but each husband and wife has separate ownership of the assets they created before and during marriage, the law only stipulates the obligations of the husband and wife to contribute to the common expenses of the family.

If choosing the property division regime, there is no common property between the husband and wife, the husband and wife must agree on each party's contribution to ensure the common life of the family, the obligation to provide for each other, and the education of the children...[21].

Chapter 1 Conclusion

The above are theoretical issues on the division of common property of spouses. In particular, the study of the concept of common property of spouses, the basis for determining common property of spouses, and the division of common property of spouses are the basis for the study and evaluation of the provisions of the 2014 Law on Marriage and Family on the division of common property of spouses. Through the above analysis, the following conclusions can be drawn:

1. The common property of a husband and wife includes objects, money, valuable papers and property rights. The common property of a husband and wife may include real estate and personal property. The common property of a husband and wife is property in the form of joint ownership that can be divided. The husband and wife have equal rights and obligations to that common property .

2. Determining the common property of spouses is based on three factors: one is the time

The second is the origin of the property; and the third is if there is a dispute over the common property or separate property of the spouses and the parties cannot prove that the property is separate property, then the property is presumed to be the common property of the spouses.

3. The nature of the division of common property of spouses is to terminate the joint ownership of the spouses over the common property and at the same time determine the separate ownership of the spouses over the divided separate property.

4. The division of common property of spouses is currently recognized in most countries and prioritizes the right of self-determination of spouses. If spouses cannot reach an agreement, the division of common property of spouses shall be in accordance with the provisions of the Law on Marriage and Family and related specialized laws.

Chapter 2

CURRENT STATUS OF THE PROVISIONS OF THE LAW ON MARRIAGE AND

FAMILY 2014 ON DIVISION OF COMMON PROPERTY OF HUSBAND AND WIFE

2.1. Division of common property of spouses during marriage

2.1.1. Legal basis

From not recognizing that husband and wife have separate property during marriage in the 1959 Law on Marriage and Family to recognizing that husband and wife have separate property and allowing the division of common property of husband and wife during marriage as stipulated in Article 18 of the 1986 Law on Marriage and Family, Articles 29 and 30 of the 2000 Law on Marriage and Family, guided from Article 6 to Article 12 of Decree No. 70/2001/ND-CP dated October 3, 2011 of the Government. Inheriting these provisions, the 2014 Law on Marriage and Family provides more specific and comprehensive provisions from Article 38 to Article 42. Accordingly, the 2014 Law on Marriage and Family clearly defines the division of property during marriage (Article 38); the effective time of the division of property during marriage; termination of the agreement on division of common property during marriage; In which cases is an agreement to divide common property during marriage invalid and the legal consequences of dividing common property during marriage?

The division of common property of spouses during marriage is regulated in the Law on Marriage and Family 2000 and can only be carried out in certain cases: for private business investment, to fulfill private civil obligations or there must be a legitimate reason for the husband and wife to request the division of common property during marriage. Based on the basis of respecting the ownership rights of each individual and their right to dispose of their property, the Law on Marriage and Family 2014 does not limit the cases in which the common property of the wife can be divided.

A marriage agreement that only stipulates cases of agreement on division of common property of spouses will be declared invalid.

Cases of invalid division of common property of spouses are stipulated in Article 42 of the 2014 Law on Marriage and Family:

1. Seriously affects the interests of the family; the rights and legitimate interests of minor children, adult children who have lost civil act capacity or are unable to work and have no assets to support themselves.

2. In order to avoid performing the following obligations:

a) Obligation to support and provide for;

b) Obligation to compensate for damages;

c) Payment obligations when declared bankrupt by the Court;

d) Obligation to repay debts to individuals and organizations;

d) Tax payment obligations or other financial obligations to the State;

e) Other property obligations as prescribed by this Law, the Civil Code and relevant legal provisions .

2.1.2. Principles of division of common property of spouses during marriage

Principles are political and legal ideas that the law sets out to guide subjects to follow when participating in social relations in general and marriage relations in particular. Compliance with these principles contributes to ensuring the rights and legitimate interests of the parties, and is also the basis for resolving arising disputes.

Regarding the division of common property of spouses during marriage, the 2014 Law on Marriage and Family, inheriting the provisions of the 2000 Law on Marriage and Family, allows spouses to agree on the division of common property in writing or request the Court to resolve. In addition, the 2014 Law on Marriage and Family recognizes the marital property regime by agreement. Therefore, if spouses choose

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