According to Clause 1, Article 56 of the 2013 Land Law, there are 7 cases where the State leases land and collects annual land rent, and the main subjects are households and individuals. In cases where the State leases land and collects land rent once for the entire lease term, the main subjects are Vietnamese people residing abroad, foreign organizations and individuals.
1.3.1.2. Land use rights that spouses obtain from legal income during marriage
During marriage, husband and wife work together to create material wealth to serve the common living needs of the family. Normally, the assets created by husband and wife during marriage are determined to be the common property of husband and wife. Those assets can be directly produced by husband and wife, or directly produced by one of the two parties, the products are for family use, the surplus is sold for accumulation, or all the products made by husband and wife are sold, creating income for the family; common property can also be formed through paid labor, hiring others to do it, through production and business organizations, etc.
It can be seen that through the labor of husband and wife, expressed in different forms to create income and assets in the family, regardless of the form of those assets (including land use rights), but if they are the result of honest labor, they are recognized as the common property of husband and wife.
In addition to the income clearly stated in Clause 1, Article 27, other legal income of spouses during marriage may be bonuses, allowances, lottery winnings that the spouses receive, or assets that the spouses have established ownership rights under the provisions of Articles 247, 248, 249, 250, 251, 252 of the 2005 Civil Code... during marriage.
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Therefore, the land use rights that the spouses create and obtain from legal income during the marriage are determined to be the common property of the spouses.
1.3.1.3. Land use rights that spouses inherit jointly, are jointly gifted to, or receive as mortgage
The right to use land that a husband and wife inherit together, are jointly gifted to each other, or receive as mortgage is a case of establishing the common property of the husband and wife based on the right of disposal of the user or according to the provisions of the law on inheritance.
Article 631 of the 2005 Civil Code stipulates: “ Individuals have the right to make a will to dispose of their property; leave their property to legal heirs; inherit property according to a will or according to the law ”. Through this provision, we can see that, according to current law, there are two forms of inheritance: inheritance according to a will and inheritance according to the law. If the land use right that each spouse obtains through inheritance according to the law is the separate property of each spouse because inheritance according to the law is inheritance according to the order of inheritance, the spouses receive the inheritance in their own capacity, then there is no joint ownership. In the case where the spouses are of the same order of inheritance according to the provisions of the law on inheritance, the land use right inherited according to the order of inheritance, according to the inheritance rate is still the separate property of each spouse. The right to use land will be the common property of the husband and wife when the husband and wife voluntarily include their own property in the common property or have an agreement that it is the common property of the husband and wife. Only the right to use land that both husband and wife inherit together according to a will in which the testator does not distinguish the property portion for each husband and wife to enjoy is the common property of the husband and wife.
In the gift relationship, it will be similar, if the husband or wife is given a gift, given separately or in the gift contract, the testator has determined the share in advance for each spouse, then in principle it is the separate property of each spouse, and it will be common property if the husband or wife voluntarily enters it into the common property or the husband and wife agree that it is common property, or if in the gift contract there is an expression of the will to give the land use rights to both husband and wife, without distinguishing the specific rights of each person, then the land use rights will be the common property of the husband and wife.
Regarding the issue of husband and wife receiving mortgages, Clause 2, Article 26 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family stipulates as follows: " In case a husband and wife receive a mortgage on the land use right of a third party, when divorced, the right to receive the mortgage on the land is also the common property of the husband and wife ". Thereby, when a husband and wife receive a mortgage on the land use right from a third party, the right to receive the mortgage on the land use right is also the common property of the husband and wife. The performance of secured civil transactions such as pledges, mortgages, and guarantees by husbands, wives, or other family members is to serve the daily needs of the family, to create material wealth to best ensure the interests of family members. Those activities are carried out and create wealth during the marriage, so those assets are the common property of the husband and wife.
1.3.1.4. The land use rights that each party acquired before marriage through conversion, transfer, inheritance, mortgage, or the land use rights that each party was assigned or leased by the State before marriage with an agreement are common property.
The right to use land that each party has before marriage or inherited separately is the separate property of each person. However, when the couple agrees that it is common property, it will be common property and when divorced, this property will be divided between both spouses. This is a new provision of the 2000 Law on Marriage and Family compared to the 1986 Law on Marriage and Family. This provision is very consistent with the ethical traditions and reality of Vietnamese family life; it ensures the right of spouses to self-determination of property. In married life, the need to eat together, live together, for the common benefit of the family has made one spouse voluntarily put his or her own property into the common property for easy management, use, and best ensure the essential needs of the family.
In reality today, many couples only agree that their own property is the common property of the couple through " words ", so when a dispute arises, the party claiming that the property is jointly owned has the obligation to prove it, if it cannot be proven, it is still the separate property of the other party. Therefore, Clause 1, Article 13 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government provides detailed regulations on the implementation of this provision.
The Law on Marriage and Family stipulates: “ The incorporation of assets such as houses, land use rights and other assets of great value under the private ownership of each spouse into the common property of the couple as prescribed in Clause 2, Article 32 of the Law on Marriage and Family 2000 must be made in writing, signed by both spouses. Such document may be notarized or certified in accordance with the provisions of law .”
1.3.1.5. Land use rights that spouses are recognized by the State during marriage
The land use rights that a couple has recognized by the State during their marriage are cases where the couple has their land use rights recognized by the State from separation or merger according to the decision of a competent State agency, from the result of dispute resolution by the Court or a competent State agency.
The land use right certificate is one of the bases for determining that land use rights are the common property of husband and wife. It can be said that this is important legal evidence proving the rights of the land user and is an important legal basis for resolving disputes related to land use rights. Therefore, the State creates all favorable conditions for land use right owners to register and be granted land use right certificates. Because land use rights are a particularly important type of property, according to the law, the land use right certificate must include the names of both husband and wife to confirm that it is the common property of the husband and wife. However, in Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 guiding the application of a number of provisions of the Law on Marriage and Family, it is instructed that: “ The certificate of ownership only records the name of the husband or wife. If there is no dispute, it is the common property of the husband and wife. If there is a dispute about separate property, the person whose name is on the certificate of ownership must have the obligation to prove it .” This provision limits the meaning of Clause 2, Article 27 of the Law on Marriage and Family 2000. According to the guidance of the Council of Judges, in case of a dispute, the person with the obligation to prove is the person whose name is on the certificate of ownership, but in reality, in case of a dispute, the person with the obligation to prove it must be
The person whose name is not on the certificate of ownership and proves that the property is the common property of the husband and wife and not the separate property of the other party.
The legislator has used the principle of speculation in determining the common property of the spouses in addition to the basis, origin, and composition of the types of jointly owned assets. This principle of speculation is not sufficient to determine whether the separate property of the spouses belongs to the common property of the spouses or not, but this principle ensures fairness on the basis of the common interests of the family. This principle is recorded in Clause 3, Article 27 of the 2000 Law on Marriage and Family, and it is also the basis for recognizing the common property of the spouses if the husband or wife cannot prove that the land use right is his or her separate property.
The above are the bases for determining land use rights as the common property of husband and wife. And these are the bases for resolving disputes without difficulty in the Court, while ensuring the legitimate interests of the parties.
1.3.1.6. Land use rights for which spouses are compensated by the State during marriage
The land use rights for which the State compensates the spouses when the land is recovered during the marriage are the common property of the spouses. If the land use rights recovered by the State are the separate property of each spouse, when the State implements the compensation policy, the value of the land use rights compensated by the State is the separate property of each spouse.
According to Clause 2, Article 74 of the 2013 Land Law, “ Compensation shall be made by allocating land with the same purpose of use as the recovered land. If there is no land for compensation, compensation shall be made in cash according to the specific land price of the recovered land type decided by the provincial People's Committee at the time of the land recovery decision .” Thereby, we can see that if the land use rights that each spouse obtains due to State compensation from the right to use the recovered land will be the separate property of each spouse if the recovered land use rights were originally the separate property of each spouse, so there is no joint ownership.
Land that a couple receives compensation from the State is considered common property when one spouse voluntarily merges his or her personal property into the common property of the couple.
In case the land use right for which the spouses are compensated by the State is the common property of the spouses and the spouses have not fulfilled their financial obligations regarding the land according to the provisions of law, before compensation, the State will deduct the value of the unfulfilled financial obligations from the compensation value. If compensation takes place at the same time as the spouses apply for divorce to divide the property, which is the land use right being compensated, then depending on the proportion of the value that each party receives, the State will determine the financial obligations that each party must fulfill.
For example, a case is as follows: Mr. Hung (a civil servant) and Ms. Lien (a farmer) filed for divorce to divide their common property, which is the right to use land, and the State compensated them with agricultural land. In this case, Ms. Lien is the one who has a direct need to use the land. If the State does not have agricultural land to compensate the couple, then based on Point b, Clause 1, Article 24 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family: “ In the case where only one party has the need and conditions to directly use the land, that person has the right to continue using the entire land after reaching an agreement with the other party; if no agreement can be reached, the land user must pay the other party the value of the land use right that party is entitled to at the level agreed upon by the two parties; if no agreement can be reached, the Court must be requested to resolve the matter .” Pursuant to Clause 1, Article 84 of the 2013 Land Law: “ In case of land recovery of households and individuals directly involved in production but without land to compensate for continued production, in addition to monetary compensation, they will also be supported with training, career conversion, and job search ”. The case of Mr. Hung and Ms. Lien will be resolved as follows: Ms. Lien is the one who has priority to receive the agricultural land if she and her husband divorce, but if that land is recovered by the State and the State has no land to compensate, the State, in addition to monetary compensation, must also support Ms. Lien to stabilize her life, in addition to vocational training and arranging a new job for Ms. Lien so that she can ensure her life.
1.3.2. Land use rights are the separate property of husband and wife.
Clause 1, Article 32 of the 2000 Law on Marriage and Family stipulates: “ Husband and wife have the right to have separate property.
The separate property of a husband and wife includes property that each person had before marriage; property inherited separately or given separately during the marriage; property divided separately between the husband and wife according to the provisions of Clause 1, Article 29 and Article 30 of this Law, and personal belongings and jewelry .
Land use rights are property rights, so they can be the common property of the husband and wife or the separate property of each husband or wife. Before marriage, individuals, through their labor and profession, can create large assets such as land use rights, or land use rights can also be donated, given, or inherited separately. These assets are created before the marriage and cannot be considered the common property of the husband and wife without the consent of the owner of the land use rights. However, due to a number of objective factors, the 1959 Law on Marriage and Family previously stipulated that all assets acquired by the husband and wife are the common property of the husband and wife, regardless of the origin and time of establishing ownership (community property regime). This leads to a situation where some people seek economic benefits for their own benefit rather than for the noble purpose of marriage, which is to build a prosperous and happy family.
Article 30 of the 2000 Law on Marriage and Family also stipulates: “ Husband and wife have the right to invest in their own business, therefore they have the right to request the court or agree with each other to divide the common property to use that private property for their own business purposes ”. Land use rights are assets with great practical value and use value. When a private business fails, leading to bankruptcy, the husband or wife must first use their own property to take responsibility for the property. Only when the private property is not enough will they use their own property in the common property to fulfill their obligations. Thus, the rights of each spouse as well as everyone else in society are protected. Before marriage, husband and wife are both independent legal entities with complete rights and obligations.
independent without legal binding in marriage and family relationships. Therefore, land use rights are of course the separate property of each party. This land use right can also be given, given separately or inherited separately by the husband or wife.
Land use rights inherited or given separately during marriage, if the husband or wife does not voluntarily enter into the common property of the couple while the marriage still exists, are of course still the separate property of each person.
The right to use land is the separate property of the husband and wife and is divided separately between the husband and wife according to Clause 1, Article 29 and Article 30 (division of common property of husband and wife while the marriage still exists). The husband or wife can use the right to use land as separate property to invest in business and perform separate civil obligations.
An important principle inherited by the 2000 Law on Marriage and Family from the 1986 Law on Marriage and Family is that “ the husband and wife have the right to include or not include their separate property in the common property ”. Thus, the right to use land that the husband and wife had before marriage, inherited separately, or given separately will be the separate property of each husband and wife. It can only be common property when the husband and wife have an agreement.
Although Vietnamese law respects, recognizes and protects the right to own property of spouses, it does not recognize (and does not allow) the establishment of separate property regimes in marriage by spouses like most capitalist countries. For example, in the United States, postnuptial agreements stipulate property rights during marriage, including: regulations on limiting or abandoning alimony; placing assets acquired during the marriage in a separate status. Thus, it can be said that this type of postnuptial agreement is also a form of dividing common property during marriage. This postnuptial agreement must be made in writing with the signatures of both spouses. The value of the postnuptial agreement is only recognized when each party knows clearly about each other's separate property, and there is no intimidation, fraud or coercion in establishing the marriage agreement. After establishing the postnuptial agreement, the property regime of the spouses is separate property.
The Chinese Marriage and Family Law has separate provisions on marriage contracts in Chapter II, so what Chinese couples must do before getting married is: