Methods of Division of Joint Property of Spouses During Marriage

The court has a basis for handling. This may be an " open " point for the court to base on each specific condition of each case to resolve the request or it may be because the legislators " missed " it during the law-making process. Therefore, in practice, there are many difficulties and problems. When accepting a case, some courts are confused about what to base on to reasonably resolve the request of the spouses? Originating from the characteristics of jointly owned property, in which the proportion of ownership of each spouse in the common property is equal. Therefore, it is thought that the current law should supplement the principle of dividing common property during marriage, applying the principle of dividing common property upon divorce as prescribed in Article 95 of the Law on Marriage and Family 2000.

Clause 2 - Article 95 of the 2000 Law on Marriage and Family stipulates:

The common property of the spouses is in principle divided in half, but each party's circumstances, property status, and contribution to the creation, maintenance, and development of this property are taken into consideration. The labor of the husband and wife in the family is considered as income-generating labor;

Protect the legitimate rights and interests of wives, minor children or adult children who are disabled, have lost civil act capacity, are unable to work and have no property to support themselves;

Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income;

Maybe you are interested!

The common property of the spouses is divided in kind or by value; the party receiving the property in kind with a value greater than the portion they are entitled to must pay the other party the difference in value.

Therefore, the current law needs to supplement the principle of dividing the common property of spouses during marriage, which has practical significance in the court's adjudication work to ensure the legitimate interests of spouses.

2.4 Method of dividing common property of spouses during marriage

The 1986 Law on Marriage and Family only recognizes that spouses have the right to request division of common property during marriage, but does not stipulate that they can divide part or all of the property. Inheriting and developing the 1986 Law on Marriage and Family, the 2000 Law on Marriage and Family has more specific provisions on the method of dividing common property during marriage. Article 29 of the 2000 Law on Marriage and Family stipulates that spouses have the right to agree or request the Court when they cannot agree on the division of common property during marriage. However, Article 29 of the 2000 Law on Marriage and Family does not specifically state the method of division. Consider Article 30 of the 2000 Law on Marriage and Family which stipulates: “ In the case of dividing common property of spouses, the benefits and income arising from the divided property shall belong to the separate ownership of each person; the remaining undivided property shall still belong to the common ownership of the spouses ”. With this provision, it can be understood that when dividing common property during marriage, husband and wife have the right to divide part or all of the common property.

2.4.1 Partial division of common property of spouses during marriage

Dividing a portion of common property during marriage means dividing only a certain amount of the common property of the spouses. The common property of the spouses is determined according to Article 27 of the Law on Marriage and Family 2000:

The common property of a married couple includes property created by the husband and wife, income from labor, production and business activities and other legal income of the couple during the marriage; property that the couple jointly inherits or is jointly given, and other property that the couple agrees is common property.

Land use rights that a husband and wife acquire after marriage are the common property of the husband and wife. Land use rights that a husband or wife acquired before marriage or inherited separately are only common property when the husband and wife have an agreement [31].

Spouses have the right to agree or request the Court to divide only a certain amount of property out of the entire property as determined in Article 27 of the 2000 Law on Marriage and Family. In reality, many families, when requesting to divide common property during marriage, only divide a portion of the property or a certain group of properties. The couple may only request to divide a portion of the property such as land use rights or only divide the capital contribution to an enterprise for production, business, or service provision, or only divide a sum of money, a sum of precious stones, diamonds, foreign currency, or divide a type of valuable paper, etc., while other properties such as houses, production workshops, or other means of production are not divided and are still jointly owned by the couple. For example, there is a couple who wishes as follows: “ My husband and I have an apartment for rent, bought with our money. I want to sell it to divide the common property with my husband but without getting a divorce. Is that possible ? [25]”. Thus, in the above situation, in addition to a rental apartment, this couple may have many other common assets, but they only want to divide the rental apartment without dividing the remaining assets. Therefore, we see that usually the value of the divided assets only accounts for a certain amount of the total value of the couple's common assets. Dividing a portion of the common assets during marriage is commonly used by couples in life, because this solution is consistent with the legitimate wishes of the couple, both ensuring the ability to fulfill the property obligations of the husband or wife, ensuring the common interests of the family and maintaining the sustainability of the family.

When dividing a portion of common property, the couple can agree to divide the property to be divided to one spouse or the other, or they can divide it equally between the couple or divide it according to another agreement. For agreements to divide a portion of property, it is often less likely to be implemented to avoid fulfilling property obligations because the portion of property to be divided is very small compared to the actual property.

with the combined common property of the spouses. However, the division of a portion of common property during marriage must still ensure the requirements prescribed by law.

2.4.2 Division of all common property of spouses during marriage

In the case of not dividing a part of the common property during the marriage, the current Law on Marriage and Family allows the couple to request the division of the entire common property. The whole is understood as: " All components, parts forming a block, a political entity " [51]. Dividing the entire common property is dividing all the unified common property that the couple created during the marriage according to Article 27 of the Law on Marriage and Family 2000 up to the time of the request for division. Dividing the entire common property is required in cases where the couple needs a large amount of property to expand the scale of business investment or the husband or wife has a property obligation that is too large to a third party, so if only dividing a part of the common property, it is not possible to do so. Therefore, dividing the entire common property is the chosen solution in this situation. However, in reality, not all couples request to divide all common assets because this division can encounter many unexpected risks, which will greatly affect the relationship between the couple and the family's common life. Therefore, only in cases of real necessity should couples use the solution of dividing all assets.

When dividing all common property during the marriage, if the husband and wife agree, the property can be divided equally between each party or divided among one party, the husband and wife have all the existing property to divide. The division of the whole in these situations needs to be considered because the purpose of the division may be to avoid fulfilling property obligations to others. Suppose that the husband had previously been obliged to pay debts to creditors, but because he did not want to fulfill this obligation, the husband agreed to divide the whole

The common property is divided among the wife. Thus, the rights of the third party in this case are not guaranteed. Therefore, similar to the division of a part of the common property, the division of the entire common property of the spouses during the marriage by agreement or by the Court must comply with the provisions of the law to avoid the situation where the spouses avoid fulfilling their property obligations to the third party.

2.5 Legal consequences of dividing common property during marriage

2.5.1 About personal

Division of common property of spouses during marriage is a special case of division, due to legitimate needs, spouses divide common property while the marriage still exists. According to the provisions of the current Law on Marriage and Family, after dividing common property during marriage, although there is a division of property between husband and wife, the marital relationship does not end, so the personal rights and obligations between husband and wife do not change, the husband and wife must continue to exercise those rights and obligations. On that basis, determining the legal consequences of personal rights and obligations after dividing property during marriage requires considering personal rights and obligations towards each other, personal rights and obligations towards the family, especially towards minor children, adult children who are unable to work, disabled, or have lost civil act capacity.

First, the personal relationship between husband and wife after dividing common property during marriage .

The personal rights and obligations of husband and wife towards each other are stipulated by the Law on Marriage and Family, originating from the basic rights and obligations of citizens as recorded in the Constitution. These rights and obligations originate from the ethical standards, natural and traditional behaviors that have existed before, and are considered as ethical obligations that are later stipulated by law.

into common rules of conduct. The personal rights and obligations of husband and wife to each other are spiritual values that bind the two people, cannot be calculated by property and cannot be transferred to others, with the aim of satisfying the emotional needs in the couple's common life. Therefore, after dividing the common property during the marriage, the personal rights and obligations of husband and wife continue to be regulated from Article 18 to Article 26 of the Law on Marriage and Family 2000 because the marital relationship does not end.

Article 18 of the 2000 Law on Marriage and Family recognizes that husband and wife have the right and obligation to be faithful, love, respect, care for, and help each other. Marital affection is an important foundation to ensure the building of a happy, harmonious family and ensure the sustainability of the marital relationship. This is not only a legal requirement but also a moral value that has existed since ancient times that husband and wife need to respect in their common life. Not only stopping at the implementation of husband and wife's affection for each other, the law also requires husband and wife to respect each other, maintain each other's reputation, honor, and dignity. Husband and wife discuss, agree, and help each other in all circumstances to promote each person's abilities and strengths, contributing to the fulfillment of each person's duties and roles towards the family in particular and society in general. At the same time, husbands and wives are prohibited from mistreating, torturing, or insulting each other's honor, dignity, and reputation. The regulation that husbands and wives have the obligation to be faithful, care for, and help each other as well as respect each other's honor, reputation, and dignity aims to ensure equality between husbands and wives in personal relationships, prevent the situation where a husband or wife has an illicit relationship with another person, and prevent acts of violence in the family.

Husband and wife have equal rights in all aspects of the family. Currently, the right to equality between husband and wife is stipulated in the 2005 Civil Code and the Law on

HN&GĐ adjusted, specifically Article 40 of the 2005 Civil Code stipulates: " Husband and wife are equal to each other, have equal rights and obligations in all aspects of the family and in civil relations, together build a prosperous, equal, progressive, and lastingly happy family " [32], and Article 19 of the 2000 Law on Marriage and Family stipulates: " Husband and wife are equal to each other, have equal obligations and rights in all aspects of the family " [31]. This provision demonstrates the equality of husband and wife when discussing and deciding together on issues related to the personal status and property of the husband and wife and of each family member, related to the common life of the family. This equality is reflected in the rights and obligations of husband and wife in raising children; in the obligation to implement population policy - family planning; in the right to choose a career, study and participate in economic, political, cultural and social activities; respect each other's freedom of belief and religion,... The 2000 Law on Marriage and Family also recognizes that spouses have the right to freely choose their place of residence, without being bound by customs and administrative boundaries. Spouses can choose their place of residence entirely based on their actual circumstances, the nature of their professional activities, and the financial capacity of each person... In addition, in the case where a spouse cannot choose a place of residence together due to work reasons, the spouses can completely choose their own place of residence without affecting the performance of their obligations to each other and to their family.

After the division of the common property of the spouses during the marriage, the right to represent each other between the spouses still exists. The Law on Marriage and Family 2000 stipulates that the spouses have the right to represent each other by authorization or by law. The spouses can authorize each other to establish, perform and terminate transactions that, according to regulations, require the consent of both the spouses. At the same time, the spouses can also represent each other when one party loses civil capacity and the other party is qualified to be a guardian or when one party has limited civil capacity and the other party is appointed by the court as a representative.

In addition to the provisions on the rights and obligations of spouses to each other, after dividing the common property during the marriage, the joint liability of the spouses for transactions performed by one party still arises in cases where the obligation arises due to one spouse participating in a legal civil transaction for the purpose of serving the common living needs of the family. Normally, in these cases, the spouses have implicitly agreed, so the spouses must bear responsibility with the combined common property because these transactions are for family purposes and not for the personal benefit of the spouses.

In reality, many couples request to divide common property during marriage in order to conduct separate production and business activities because they do not want to affect the family's interests, and on the other hand, to ensure a stable family life. This is a positive point that needs to be encouraged. If after dividing common property during marriage, the couple continues to live together, the implementation of personal rights and obligations towards each other will not change much compared to before dividing common property, the implementation of these rights and obligations is relatively complete. Because when living together, they will easily understand each other's thoughts and wishes, so they can discuss and give advice to avoid conflicts and misunderstandings that can cause harm to the common life of the family. If due to circumstances, each person later lives in a separate place, will the implementation of personal rights and obligations towards each other at this time be affected? When a couple lives in different places after dividing their common property, it will be difficult to care for, help, and look after each other. This partly reflects the cracks in the marital relationship. If so, does this indirectly acknowledge the separation regime as stipulated in some countries in the world? Separation is understood as a legal regime and a legal term to refer to the case where a couple must live separately (separate residence) and separate their assets (separate property regime) that the law

Comment