Notarization of documents related to marital property

Article 27 of the 2000 Law on Marriage and Family stipulates:

The land use rights that a husband and wife acquire after marriage are the common property of the husband and wife. The 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...

In case the property is jointly owned by a husband and wife and the law requires registration of ownership, the ownership certificate must state the names of both husband and wife [36].

According to the provisions of Clause 1, Article 5 of Decree No. 70/2001/ND-CP dated October 3, 2001, "Assets jointly owned by husband and wife, when registering ownership, must be registered in the names of both husband and wife according to the provisions of Clause 2, Article 27 of the Law on Marriage and Family, including: houses, land use rights and other assets that the law requires to register ownership" [14].

"The registration of assets and property rights jointly owned by husband and wife must be recorded in the names of both husband and wife as prescribed in Clause 1 of this Article and shall be implemented from the effective date of this Decree" [15]. And according to the provisions of Article 32 of Decree No. 70/2001/ND-CP dated October 3, 2001, "This Decree shall take effect from October 18, 2001".

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Thus, in principle, the owner of the property is the person whose name is recorded on the ownership certificate. Based on the above provisions, for properties that must be registered after October 18, 2001, notaries can easily determine which are common properties and which are separate properties of the husband and wife. Although the 2005 Civil Code and the law on marriage and family have provided relatively clear regulations, in practice, the application of this provision also encounters many difficulties, because if the notary determines the owner of the property based only on the above provisions, it is very easy for the notarized document to be invalid due to violation of the subject conditions. For example, the subject of the document dividing the common property of the husband and wife during the marriage is the means

traffic (cars). In fact, up to now, the Certificate of Car Registration, Certificate of Motorcycle Registration, and Motorbike Registration are only in the name of one person. According to the regulations in Circular No. 36/2010/TT-BCA dated October 12, 2010 of the Ministry of Public Security regulating vehicle registration and Circular No. 75/2011/TT-BCA dated November 17, 2011 of the Ministry of Public Security amending and supplementing Circular No. 36/2010/TT-BCA dated October 12, 2010 and the forms issued with Circular No. 36/2010/TT-BCA such as: Form No. 02 on Vehicle Registration Declaration; Form No. 03 on Transfer and Transfer Declaration; Form No. 08 on Motorcycle Registration Certificate; Form No. 09 on Vehicle Registration Certificate... there is no provision for registering the names of both husband and wife as owners of the vehicle.

Or for the issuance of land use right certificates, Clause 3, Article 48, Land Law 2003 stipulates: "In case the land use right is the common property of husband and wife, the land use right certificate must record both the wife's full name and the husband's full name". However, in reality, if the husband or wife goes on a long business trip abroad and during that time the other person in Vietnam stands up to receive the transfer of land use right, the land use right certificate will only be in the name of the individual who directly signed the transfer contract, which is the other person in Vietnam.

Reflecting the above situation, Point b, Section 3 of Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of the 2000 Law on Marriage and Family also clearly stated: "Practice shows that only very large assets, very important to family life, are recorded in the Certificate of Ownership of both husband and wife (such as: houses, land use rights...), but not in all cases. For other assets that must be registered for ownership, the Certificate usually only records the name of the husband or wife (such as: motorbikes, cars, ships, transport boats...)".

Therefore, to resolve those problems, point b, section 3 of Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 provides guidance:

To protect the legitimate rights of the parties, in the case of property acquired by the husband and wife during the marriage that the law requires to be registered for ownership, but 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 [50].

Therefore, the name on the certificate is no longer the only basis to prove that person is the legal owner of the entire property. According to the Notary Skills Curriculum of the Judicial Academy published by the Judicial Publishing House in 2010, the documents proving ownership are only:

The necessary condition for a notary to be able to determine who is the legal owner of the property that is the subject of a document related to the property regime of spouses. To accurately determine the owner of the property, we need to consider the second condition (or what can be called the sufficient condition) which is the time of creation of the property in comparison with the period of marriage or, more precisely, the time of the beginning or end of marriage [29, p. 440].

Thus, in principle, when notarizing documents related to the property of a husband and wife whose subject matter is property that must be registered for ownership, "the notary will base on the time of commencement and/or termination of the marriage with the time the competent state agency issues the certificate of ownership to determine whether it is the common property of the husband and wife or the separate property of the wife or the separate property of the husband" [29, p. 441].

* Subject of documents related to the property of husband and wife

For other types of contracts and transactions, the scope of subjects participating in the transaction is relatively broad. However, the subjects participating in the conclusion of the agreement document

The agreement on division of common property of spouses during marriage, the document restoring the common property regime of spouses... is very narrow, only including people who have a marital relationship with each other. So how is a man and a woman considered to have a marital relationship?

According to Clause 2, Article 8 of the 2000 Law on Marriage and Family, "Marriage is the establishment of a husband and wife relationship by a man and a woman in accordance with the provisions of law on marriage conditions and marriage registration" [36]. Clause 6, Article 8 of the 2000 Law on Marriage and Family also stipulates: "Marriage is the relationship between a husband and wife after marriage" [36]. Article 39 of the 2005 Civil Code stipulates: "Men and women who are eligible to marry according to the provisions of law on marriage and family have the right to marry freely" [41]. Article 9 of the 2000 Law on Marriage and Family stipulates the conditions for marriage as follows:

Men and women getting married must comply with the following conditions:

1. Men from twenty years old and above, women from eighteen years old and above;

2. Marriage is voluntarily decided by men and women, neither party may force or deceive the other; no one may force or hinder;

3. The marriage does not fall under one of the cases of prohibited marriage specified in Article 10 of this Law [36].

Article 10 of the Law on Marriage and Family stipulates cases where marriage is prohibited, as follows:

Marriage is prohibited in the following cases:

1. Married person;

2. Persons lacking civil capacity;

3. Between people of the same bloodline; between relatives within three generations;

marry:

4. Between adoptive parents and adopted children; between former adoptive parents and adopted children, father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and wife's stepchild, stepmother and husband's stepchild;

5. Between people of the same sex [36].

Article 11 of the 2000 Law on Marriage and Family stipulates registration.

1. Marriage must be registered and performed by a competent state agency (hereinafter referred to as the marriage registration agency) according to the procedures prescribed in Article 14 of this Law.

Any marriage ceremony not prescribed in Article 14 of this Law shall have no legal value.

Men and women who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife [36].

Article 3 of Decree No. 70/2001/ND-CP dated October 3, 2001 detailing the implementation of the Law on Marriage and Family stipulates the age of marriage as follows: "Men at the age of twenty and women at the age of eighteen are eligible for marriage according to the provisions of Clause 1, Article 9 of the Law on Marriage and Family" [14].

Article 4 of Decree No. 32/2002/ND-CP dated March 27, 2002 of the Government regulating the application of the Law on Marriage and Family to ethnic minorities also stipulates the age of marriage: "Men from twenty years of age and up, women from eighteen years of age and up are allowed to get married to ensure the development of the race, ensuring that both men and women have adequate health conditions and the ability to take care of family life" [17].

Point a, Section 1 of Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of the 2000 Law on Marriage and Family stipulates:

The marriage conditions stipulated in Clause 1, Article 9 are: "Men must be twenty years of age or older, women must be eighteen years of age or older". According to this provision, it is not required that men must be twenty years of age or older, and women must be eighteen years of age or older to get married; therefore, men who have turned twenty and women who have turned eighteen and get married do not violate the marriage age conditions [50].

Based on the above provisions, it can be seen that the subjects of the marital relationship can only be a man and a woman; the man must have turned twenty (not necessarily twenty years old), the woman must have turned eighteen (not necessarily eighteen years old) and the marital relationship must be recognized by law, that is, there must be a marriage registration. Therefore, the subject who has the right to participate in the conclusion of the agreement on the division of common property of the husband and wife during the marriage, the document restoring the common property regime of the husband and wife... must also fully satisfy the above conditions because the accurate determination of the subject participating in the conclusion of documents related to the property of the husband and wife is of vital importance to the results as well as the legal effectiveness of the documents related to the property of the husband and wife that are notarized. And to check those conditions, when certifying documents related to the property of the husband and wife, the notary must ask the husband and wife to present their identification papers and especially in all cases the notary must ask the husband and wife to present their Marriage Certificate to check whether the person requesting notarization of documents related to the property of the husband and wife is a husband and wife or not? The notary will determine the marital status of the husband and wife based on the legal Marriage Certificate presented by the parties. And to determine whether a Marriage Certificate is legal, the notary must base on the provisions of the Law on Marriage and Family 2000; the provisions in Section 2, Chapter II of Decree No. 158/2005/ND-CP dated December 27, 2005 of the Government on civil status registration and management and Section 2, Part II of Circular No. 01/2008/TT-BTP dated June 2, 2008 of the Ministry of Justice guiding the implementation of a number of provisions of Decree No. 158/2005/ND-CP dated December 27, 2005.

According to Article 11 of the 2000 Law on Marriage and Family:

Marriage must be registered and performed by a competent state agency (hereinafter referred to as the marriage registration agency) according to the procedures prescribed in Article 14 of this Law.

Any marriage ceremony not prescribed in Article 14 of this Law shall have no legal value.

Men and women who do not register their marriage but live together as husband and wife are not recognized by law as husband and wife [36].

According to Article 12 of the 2000 Law on Marriage and Family, the marriage registration agency is the People's Committee of the commune, ward or town where one of the two parties to the marriage resides, and the diplomatic representative agency or consular agency of Vietnam abroad is the agency that registers marriages between Vietnamese citizens abroad. Article 14 of the 2000 Law on Marriage and Family stipulates on the organization of marriage registration, accordingly: "When organizing marriage registration, both the man and the woman must be present. The representative of the marriage registration agency requests the two parties to state their voluntary desire to marry. If the two parties agree to marry, the representative of the marriage registration agency shall hand over the Marriage Certificate to the two parties" [35]. Clause 3, Article 18 of Decree No. 158/2005/ND-CP dated December 27, 2005 of the Government on registration and management of civil status stipulates:

When registering for marriage, both the man and the woman must be present. The representative of the People's Committee at the commune level asks both parties to state their desire to voluntarily marry. If both parties agree to marry, the Civil Status Officer will record it in the Marriage Registration Book and the Marriage Certificate. Both the man and the woman sign the Marriage Certificate and the Marriage Registration Book. The Chairman of the People's Committee at the commune level signs and issues each spouse an original copy of the Marriage Certificate, explaining to both parties the rights and obligations of the spouses according to the provisions of the Law on Marriage and Family. A copy of the Marriage Certificate is issued upon request of the spouses [18].

Article 46 of Decree No. 158/2005/ND-CP dated December 27, 2005 stipulates: "Births, deaths, marriages, and adoptions that have been registered, but the household registration book and original household registration papers have been lost or damaged and cannot be used, must be re-registered" [18].

Thus, the Marriage Certificate can be issued according to different procedures and processes as prescribed by law. Notaries need to understand these procedures to have a basis for checking when the person requesting notarization presents them.

* Agreement content

The notary asks the wife and husband about the agreements they want to include in the content of the agreement on division of common property of the husband and wife during the marriage (or the document restoring the common property regime of the husband and wife, or the document incorporating the separate property of one spouse into the common property, etc.). On that basis, the notary compares with the legal provisions to see if those agreements violate the prohibitions of the law or are contrary to social ethics. If there is a violation, the notary must analyze and guide them to re-agree. If there is no violation, the notary must accept the document they have drafted or help them draft documents related to the property of the husband and wife according to their wishes.

- Results of checking and verifying the conditions for accepting notarization request documents

After the notary examines and verifies the conditions for accepting the notarization request, the following results may be obtained:

* Accepting notarization requests.

According to the provisions of Clause 3, Article 35 of the Law on Notarization, the notary public receives the dossier and checks the documents in the dossier requesting notarization. In case the dossier requesting notarization is complete and in accordance with the provisions of law, it will be accepted and recorded in the notarization book. However:

In reality, after receiving and processing the application, when the notarized document has been signed by the parties in front of the notary