Notarization of documents related to marital 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.

The common property of the spouses is jointly owned...

3. In case there is no evidence to prove that the property in dispute between husband and wife is the separate property of each party, then that property is joint property [36].

Thus, the first thing to affirm is that the common property of the spouses is the property established "during the marriage period". According to Article 8 of the 2000 Law on Marriage and Family, "The period of marriage is the period of time during which the marital relationship exists, calculated from the date of marriage registration to the date of termination of marriage". Notaries need to pay special attention to determining the "period of marriage", need to determine the starting time and the ending time of the marriage period. The starting time is calculated from the "date of marriage registration" and the ending time is the date of "termination of marriage". The common property of the spouses exists in parallel with the marriage period and will no longer exist when their marriage ends. According to the provisions of law, marriage will end in the following cases:

- Divorce. According to Clause 8, Article 8 of the 2000 Law on Marriage and Family, "Divorce is the termination of a marriage relationship recognized or decided by the Court at the request of the wife or husband or both spouses." In this case, according to Article 95 of the 2000 Law on Marriage and Family, the division of the couple's common property will be "agreed upon by the parties; if no agreement is reached, the Court will be requested to resolve it." Therefore, the division of property upon divorce will not be under the jurisdiction of the notary. And the marriage will also end if one spouse or one spouse dies or both spouses die or one spouse or one spouse

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The husband or both spouses are declared dead by the Court according to the provisions of civil law.

Thus, all assets arising during the marriage, except for assets given to the husband or wife separately or inherited separately, are determined to be the common property of the husband and wife, including:

- Assets created by the husband or wife or both husband and wife during the marriage (building a house, raising livestock, poultry...);

- Legal income of spouses during marriage (salary, wages...);

- Assets that spouses inherit jointly or are given jointly;

- Other assets that the husband and wife agree to be common property;

- Assets without evidence proving that they are the separate property of the husband or wife'

- Land use rights that spouses acquire after marriage.

Referring to the laws of some countries in the world, we also find similar regulations on the common property of spouses according to the Law on Marriage and Family of our country in 2000. Article 1401 of the French Civil Code stipulates: The property of spouses includes the common income of both spouses or the separate income of each person during the marriage and is derived from their business, as well as from savings obtained from the profits and income of their separate property. Article 13 of the Marriage Law of the People's Republic of China (1980) also stipulates: The property of spouses created during the marriage is the common property of spouses, in addition, each party may have separate property other than the above provisions. Article 1422 of the 1985 French Civil Code stipulates: A husband or wife alone cannot give away common property to another person without the other party's consent... Articles 1479 and 1487 of the Thai Civil and Commercial Code also stipulate: No wife

or either husband may appropriate or annex any property of the other during the marriage.

+ Private property of husband and wife

The separate property of husband and wife is regulated in Article 32 of the 2000 Law on Marriage and Family, accordingly:

1. Husband and wife have the right to own 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 marriage; property divided separately to the husband and wife according to the provisions of Clause 1, Article 29 and Article 30 of this Law; personal belongings and jewelry.

2. Husband and wife have the right to include or not include their separate property in the common property [36].

Thus, according to the provisions of Article 32 of the 2000 Law on Marriage and Family, the separate property of husband and wife includes:

- Assets that each person had before marriage;

- Separately inherited or separately gifted assets during marriage;

- Property is divided separately for husband and wife when the couple divides common property during marriage;

- Personal belongings.

Thus, the law has recognized that husband and wife have common property and also have the right to own separate property. However:

The common property of husband and wife or the separate property of the husband or wife is not an immutable factor. Due to the subjective will of each party, the agreement of the parties or a judgment of a competent state agency, the separate property of the husband or wife

will become the common property of the husband and wife or vice versa, the common property of the husband and wife will be transformed into the separate property of the wife or the husband. In particular, the common property of the husband and wife, the separate property of the husband or wife can also change, increase, decrease over the years depending on the income or business results of the husband and wife [29, p. 418].

Therefore, notaries need to understand the legal basis for determining what is common property and what is separate property of the husband or wife, on that basis they can accurately determine the form of relevant notarized documents as well as determine the appropriate content in those documents.

In addition, notaries also need to understand the legal regulations on housing, land, businesses, etc., because the practice in recent years has shown that most of the documents related to the property of husband and wife that people request notarization mostly have the property object being land, housing or other valuable assets that must go through registration procedures, name change when transferring ownership such as cars, motorbikes, etc.

+ Documents related to the property of the couple are notarized

Types of documents related to the property of husband and wife that can be notarized are:

- Written agreement on division of common property of husband and wife during marriage. Clause 2, Article 6 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the 2000 Law on Marriage and Family (hereinafter referred to as Decree No. 70/2001/ND-CP dated October 3, 2001) stipulates that written agreement on division of common property of husband and wife may have witnesses "or be notarized or certified at the request of the husband and wife or as prescribed by law" [14];

- Document to restore the common property regime of spouses. According to the provisions of Clause 2, Article 9 of Decree No. 70/2001/ND-CP dated October 3, 2001,

The document restoring the common property regime of spouses may have witnesses "or be notarized or authenticated at the request of the spouses or as prescribed by law" [14];

- Document to incorporate the separate property of one spouse into the common property. Clause 1, Article 13 of Decree No. 70/2001/ND-CP dated October 3, 2001 stipulates:

The incorporation of assets such as houses, land use rights and other assets of great value owned by one spouse into the common property of the couple as prescribed in Clause 2, Article 32 of the Law on Marriage and Family must be made in writing, signed by both husband and wife. Such document may be notarized or certified in accordance with the provisions of law [14].

The above provisions show that the notarization of documents agreeing on the division of common property of husband and wife during marriage; documents restoring the common property regime of husband and wife and documents incorporating the separate property of one spouse into the common property can be done "at the request of the husband and wife" or "according to the provisions of law". Thus, notaries are fully authorized to perform the certification when receiving a request to notarize these types of documents. However, in reality, notaries also receive many requests to notarize documents related to the property of husband and wife but not falling within the three cases provided for by law above. Some types of documents can be mentioned as follows:

- Document confirming the separate property of the husband or wife. In reality, there are currently different opinions among notaries on whether or not to certify this type of document.

Some notaries believe that even if a person's private property is not certified by a notary, it will still belong to that person's ownership and usage rights based on documents proving ownership and usage rights as well as the basis for the arising of those rights. Furthermore, the law

The law does not prescribe this form of document. Therefore, notaries do not participate in certifying this type of document.

Some other notaries believe that it is possible to certify this document when the person requesting the notarization requests it, because although the law does not stipulate the form of this document, it is a requirement that does not violate the provisions of the law and is especially suitable for practical life requirements, especially in cases where the wife or husband needs to prove the origin of their separate property during the marriage. Going back to the previous notarization regulations, there are also quite detailed regulations on this issue.

Circular No. 858/QLTPK dated October 15, 1987 of the Ministry of Justice guides the implementation of notarization work, in which section II.7 on the procedure for certifying the separate property portion in the common property of spouses stipulates: "The certificate of separate property portion in the common property may be issued upon request of both spouses or one spouse if the other spouse dies" [5]. Also according to the provisions of Circular No. 858/QLTPK dated October 15, 1987 of the Ministry of Justice, even when considering the application for a certificate of separate property portion in the common property of spouses, "The notary does not need to know why the spouses want to establish a certificate of separate property portion in their common property portion" [5].

Article 27 of Decree No. 45/HDBT dated February 27, 1991 stipulates the certification of common property of spouses or separate property of husband or wife as follows: "The notary public certifies the common property of spouses or separates a part of the property in the common property of spouses into separate property of the husband or wife on the basis of a joint application of the spouses while the marriage is still in existence" [10].

Thus, the certification of separate property in the common property of spouses as prescribed in previous notarized documents is accepted and the person requesting notarization does not even need to state the reason for performing this certification (Circular No. 858/QLTPK dated October 15, 1987).

However, according to Article 2 of the Notary Law, the scope of notarization is contracts and transactions (unilateral legal acts - Article 121 of the 2005 Civil Code). This provision is completely consistent with the functions and duties of notaries, which is to certify the legality of transactions, to force the parties involved in the transaction to exercise their rights and obligations. On the other hand, if the confirmation of the separate property of the husband or wife is carried out in accordance with the provisions of Circular No. 858/QLTPK dated October 15, 1987, according to which "Certificate of separate property in the common property can be issued upon request of both spouses or one spouse if the other spouse dies" [5] and when considering the application for a certificate of separate property in the common property of the husband or wife, "The notary does not need to know why the husband or wife wants to establish a certificate of the separate property in their common property", it may lead to a case where the widow or widower takes advantage of the notarization of the confirmation of separate property to appropriate the common property. In the future, the confirmation of separate property will be under the authority of the bailiff.

- The document dividing the common property of the spouses after the People's Court of competent authority issues a judgment or decision recognizing a consensual divorce that has come into legal effect. In this situation, when requesting the People's Court to issue a judgment or decision recognizing a consensual divorce, the parties did not make a request to divide the common property of the husband and wife, so the Court did not consider the property portion in the judgment or decision recognizing a consensual divorce. Therefore, after the judgment or decision recognizing a consensual divorce comes into legal effect, two individuals who were once husband and wife often request notarization of a document agreeing to divide their common property. At this time, the marriage has ended, but according to the assessment of the majority of notaries, the end of the marriage plays a direct role in the division of property of two individuals who were once husband and wife. And in fact, for this type of document, "Although the law does not specify the forms of this type of document in detail, based on the scope of notarization prescribed in Article 2 of the Law on Notarization,

Most notaries still handle such notarization requests upon receiving a request from the person requesting notarization" [29, p. 423].

2.2.1.2. Skill requirements

Notaries need the following skills:

+ Consulting, accurately determining notarization requirements, determining the form of notarized documents

When people requesting notarization come to notary organizations, whether it is a Notary Office or a Notary Office, they all want their notarization to be resolved quickly, conveniently and safely. However, in practice, when people come to notary organizations, they often present their understanding. Due to the limited level of education in general and legal knowledge in particular of the people, there are many cases where people requesting notarization ask the notary to certify a type of work that is completely different from their true wishes. In practice, there was a case where a 78-year-old woman in Hanoi wanted to give all the real estate under her ownership and use to her son; but through discussion, the notary clarified that the old woman actually wanted to make a will to leave her assets to her son when she passed away. In the certification of documents related to the property of spouses, there are cases when resolving notarization requests regarding property between husband and wife, the types of documents related to the property of spouses are not used. In practice in Hanoi, there was also a case where a couple came to request a notary to draw up a document agreeing to divide the common property, which was an apartment. However, the husband and wife had agreed that the husband would have the right to own the entire apartment and the wife would not receive any material benefits. After receiving the notarization request, the notary explained and advised them that instead of drawing up a document agreeing to divide the common property of the couple, they would draw up a contract.

Notarization of documents related to marital property - 7

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