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Measures to Organize, Implement and Apply the Law

the living of each family and the value of that property in the common property of the couple.

d) Regarding the division of common property of spouses during marriage


- On the principle of dividing common property of spouses during marriage:


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It is necessary to specifically stipulate the principles for dividing the common property of spouses during marriage when the division of such common property is under the jurisdiction of the Court in order to create a legal basis for resolving arising disputes.

The 1986 Law on Marriage and Family stipulates that the division of common property of spouses during marriage is based on the principle of dividing property of spouses upon divorce (Article 18).

Measures to Organize, Implement and Apply the Law

On the basis of inheriting the above provisions of the 1986 Law on Marriage and Family, it is necessary to stipulate the principles of dividing the common property of spouses during marriage in the following direction: When dividing common property, the Court shall base on the reasons and purposes of dividing common property to decide the scope of common property to be divided. The division of common property shall be based on the principles of dividing property upon divorce; if the property is housing and land use rights, separate provisions on that issue shall apply.

- On the right of a third party to sue for the division of common property of spouses during marriage

To ensure the rights of third parties to the property obligations of the wife or husband when they do not have enough separate property to fulfill their obligations, the Law on Marriage and Family must recognize the right of third parties to sue in dividing the common property of the spouses during the marriage. The law must clearly stipulate: In cases where the person with the right has sufficient evidence to believe that the spouses did not have an agreement or did not request the Court to divide the common property during the marriage with the aim of avoiding the performance of property obligations, the person with the right can request the Court to divide the common property of the spouses during the marriage.

The request of the entitled person will not be recognized by the Court if the division of common property seriously affects the family interests of the obliged person or if the obliged spouse has enough separate property to pay the debts.

In the immediate future, to ensure the legitimate rights and interests of the third party in this case, it is necessary to apply the provisions of the Civil Code: Common property is divided at the request of the joint owner or at the request of the person who has the right to request one of the joint owners to perform obligations to him/her but that person does not have separate property. That means that the third party has the right to request the division of the common property of the spouses to ensure the performance of separate obligations, but under certain conditions as stated above.

- On the responsibilities of husband and wife towards the family after dividing common property

To ensure the nature of socialist marriage and promote the purpose and meaning of dividing common property during marriage, it is necessary to stipulate additional content to ensure property for the common needs of the family after dividing the common property of the spouses during marriage.

In addition, it is also necessary to specify: In case the husband and wife cannot agree on ensuring the common needs of the family, they can request the Court to resolve. The Court decides the level of contribution of the parties based on the actual needs of the family and the economic capacity of the parties or decides not to divide the entire common property, the undivided common property is used for the needs of the family.

- Regarding the effective date of the document dividing the common property of spouses:

When a couple agrees to divide their common property during marriage, it is necessary to stipulate that in all cases the agreement between the couple must be notarized and authenticated, thereby determining the effective date of the document in a fairer manner, limiting the case of dissipation of the couple's property. At the same time, there should be strict binding regulations, for example, the couple must publish in the newspaper the status of the division of common property during marriage, on this basis, those with related rights and obligations can detect and intervene promptly. On the other hand, notary offices will consider this a condition for notarization. Only then will there be no loopholes for the couple to evade the law, affecting the property interests of those with related rights and interests.

- On the legal consequences of dividing common property of spouses during marriage:

The division of common property of spouses according to the provisions of Articles 29 and 30 of the Law on Marriage and Family does not automatically terminate the common property regime of spouses, and therefore does not automatically put spouses in a state of "separate property". With the provisions on the division of common property of spouses during marriage, it will create opportunities for spouses to have better conditions to resolve their property needs in a reasonable manner, without affecting the common interests of the family. Therefore, the viewpoint on determining that the provisions in Clause 2, Article 8 of Decree No. 70/2001/ND-CP are inconsistent with the provisions in Article 27 of the Law on Marriage and Family 2000 is reasonable.

- On the cancellation of the agreement on division of common property of spouses during marriage

It is necessary to clearly stipulate who has the right to request the Court to cancel the agreement on division of common property during marriage in case this agreement violates the conditions on division of common property during marriage as prescribed in

Article 29 of the Law on Marriage and Family 2000 or seriously affects family life.

Regarding the legal consequences of the Court declaring invalid an agreement to divide common property. It is necessary to specifically stipulate: In case the agreement to divide common property during the marriage is declared invalid by the Court, the common property regime of the spouses is restored to the status before the agreement to divide common property.

- On restoring the common property regime of spouses after division:


The current law stipulates that spouses have the right to agree to restore the common property regime of spouses after division, which is completely appropriate. However, there should be more specific regulations and the spouses should not be given absolute rights in agreeing to restore the common property regime of spouses by providing principles and conditions to ensure not only the rights and interests of the spouses but also the rights of third parties and the interests of society.

e) Other problems in property ownership between spouses

- Regarding the determination of the property of spouses regarding intellectual property rights, according to the provisions of the Law on Marriage and Family, all assets and legal income

Legal assets created during marriage are the common property of the husband and wife. However, it is different with intellectual property, although it is also a type of property in the form of property rights. Intellectual property is a type of intangible property, people can only express ownership of it through property rights. Intellectual property rights include copyright and related rights, industrial property rights, ownership of plant varieties, including property rights. The owners of the above three types of rights have been clearly specified in the Law on Intellectual Property. Specifically: copyright owners only include the author (the person who directly

creator of the work), co-author, individual or organization assigning tasks to the author or signing a contract with the author, heir; person granted rights by the author under the contract, the State; owners of related rights can only be individuals or organizations specifically stipulated in Article 44 of the Law on Intellectual Property; owners of industrial property objects have been clearly stipulated in Article 121 of the Law on Intellectual Property... Thus, according to the principle of priority in applying specialized law, which is the Law on Intellectual Property, the wife or husband of the owner of intellectual property rights is not automatically the owner of the intellectual property, therefore they absolutely cannot participate with their wife (husband) in deciding and using that intellectual property, and the user of intellectual property does not have to ask for permission from both husband and wife when using intellectual property according to the provisions of the law. Only royalties, remuneration, and other material benefits are jointly owned by the spouses because these are the legal income of the spouses during the marriage.

- Property rights and obligations of spouses in the relationship of compensation for damages outside the contract

According to the provisions of the Law on Marriage and Family, the separate property of a spouse includes the property that each person had before marriage; property inherited separately or given separately during marriage; property divided separately between the husband and wife according to the provisions on division of common property during marriage; personal belongings and jewelry. There is a view that, applying this provision, property acquired through compensation for damages outside the contract is not separate property, so the only way to determine it is the common property of the spouses.

However, it is necessary to base on the provisions of the Civil Code and consider the provisions on property relations between spouses according to the Law on Marriage and Family to determine.

When a couple suffers property damage, the damages to be compensated shall be determined according to the provisions of Article 608 of the Civil Code. From the family perspective, it is necessary to distinguish

The damaged property is common property or separate property. If the damaged property is common property, all damages, including direct damages and indirect damages, are compensated as common property of the couple. If the damaged property is the separate property of the husband or wife, in principle, the compensation is the separate property of the husband or wife. If the husband or wife suffers damage to health or life, the compensation can be considered common property (this is also reasonable because even when selling the property to buy new property, the new property is also common property); if the compensation is to compensate for actual income lost or reduced due to health damage, it is clearly common property like legal income; If the compensation is to cover medical expenses, it can also be considered joint property because in reality, the joint property must be advanced to pay for medical expenses and because it can also be considered an essential need of the family. However, if the compensation is to compensate for the dignity and honor of the husband or wife that has been violated, then if the husband and wife use the joint property to limit and remedy the damage, the compensation is joint property; if the damaged person has used his or her own property to remedy the damage, the compensation is the separate property of that person. The actual lost or reduced income of the damaged person belongs to the joint property of the husband and wife because it is the income earned during the marriage. The amount of money to compensate for the mental damage that the person suffers is the separate property of the damaged person.

When one spouse causes damage, in principle, the person who causes the damage must compensate with his or her own property because that is a separate obligation, except in cases where the couple agrees to compensate with common property.

- About a person having multiple legal marital relationships:

In fact, there are still many cases of polygamy. The Law on Marriage and Family needs to regulate this content in the following direction: If the property created by the husband is the result of the efforts of all, it is the common property of everyone. If created by only the husband and one wife, it is the common property of that husband and wife. If it is not possible to determine whose efforts the property is, it is the common property of all people in this polygamy.

- Certificate of House Ownership and Land Use Rights with only the husband or wife as the owner and user:

In principle, a disputed property without sufficient evidence to prove that it is the separate property of one party is considered common property (Clause 3, Article 27 of the 2000 Law on Marriage and Family). Therefore, it is necessary to understand that even in cases where the ownership certificate only lists one party's name, the property is still jointly owned by the husband and wife. If there is a dispute, the party who claims that the property is their separate property must prove it. And especially, in the process of resolving the dispute, it is necessary to consider the time when the land use rights and home ownership rights of the user arose and the origin of the land use rights and home ownership rights. For example, if the land is received by the husband and wife during the marriage by joint gift, joint inheritance, transfer, mortgage of land use rights, etc., even if only one party is named, it is still the common property of the husband and wife.

But in the long term, in order to better protect the rights of private property owners and uniformly apply the provisions of the law on the registration of owners' names and the guiding provisions of Decree 70/2001/ND-CP and Decree 181/2004/ND-CP, a practical basis should be created for implementation. Specifically, thoroughly apply the registration of common names for certificates of ownership of common property, and gradually proceed with the change of certificates of ownership and rights to use common property.

f) Difficulties and inadequacies in the maintenance relationship between husband and wife


- The Law on Marriage and Family needs to have more specific and clear regulations on the cases where husband and wife provide maintenance to each other during marriage. This will create a legal framework for husband and wife to exercise their rights and obligations.

- Because the obligation of alimony between husband and wife upon divorce has its own characteristics, it only arises when there is a judgment or decision with legal effect of the Court for the couple to officially terminate the marriage relationship, so it is necessary to specifically and clearly stipulate the statute of limitations for filing a lawsuit for alimony as well as the alimony period.

g) On the right to inherit each other's property between husband and wife


In order to ensure the legitimate rights and interests of the surviving spouse, the law needs to clearly stipulate the basis for determining the time limit for restricting the division of inheritance as well as the basis for terminating the restriction on the division of inheritance to have a legal basis for the Court to decide, ensuring the legitimate rights and interests not only of the surviving spouse but also of the legitimate rights and interests of the legal heirs.

3.2.3. Measures to organize implementation and application of the law


To ensure that legal provisions are effectively implemented, appropriate measures must be taken. One of these appropriate measures is:

3.2.3.1. Building a mechanism to ensure political policies and the Party's guiding viewpoints.

Strengthening the leadership and direction of Party committees at all levels and the leadership of authorities at all levels in family work. Party committees and authorities at all levels need to identify family work as an important content in annual, 5-year and long-term socio-economic development plans and programs.

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