Notarized Agreement on Division of Joint Property of Spouses During Marriage

The requirement to notarize an agreement on the separate property of a husband and wife is essentially just an affirmation of the separate ownership of the husband and wife over the property, and does not change the ownership relationship between the husband and wife. However, when a dispute arises, the notarized document of the agreement on the property of the husband and wife will have "evidential value" in resolving the rights and interests of the parties. Because

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Therefore, notarizing the agreement on the separate property of the spouses is necessary, it helps protect the owner's ownership rights to his property, limiting disputes that may arise.

Returning to the above situation, does the recognition of one party ensure the rights and interests of a third party related to the common property of the couple or the property obligations of Mr. Sahar? In our opinion, Mr. Sahar's recognition is only one of the bases to determine Ms. Trang's ownership of the property. The CCV needs to base on the provisions of the law on the basis for establishing ownership of the separate property of the couple to resolve the request for notarization of the agreement on the separate property of the couple. In this situation, in addition to Mr. Sahar's recognition, the CCV should ask Ms. Trang to supplement the Apartment Sale Contract and the deposit receipt to prove that the amount of money to buy the apartment was her money before marrying Mr. Sahar. Only then can the "authenticity" and "legality" of the agreement on the property of the couple be ensured.

- In 2009, Mr. Nguyen Huu Minh Hoang and his wife, Ms. Ngo Thanh Ha, requested CCV to notarize Ms. Ha's separate property agreement. According to Ms. Ha's statement: during the marriage, Mr. Hoang and Ms. Ha agreed to divide the couple's common property. After dividing the property, Ms. Ha invested in buying some real estate. To facilitate the transfer of these real estates, Ms. Ha and Mr. Hoang requested that the agreement be notarized stating that all real estates that she acquired after dividing the common property with Mr. Hoang were Ms. Ha's separate property.

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After Mr. Hoang and Ms. Ha agreed to divide the common property during the marriage and both were registered under Ms. Ha's name, and were granted a certificate of right to use and ownership after the division of the common property between Mr. Hoang and Ms. Ha. According to Article 8 of Decree No. 70/2001/ND-CP dated October 3, 2001 of the Government detailing the implementation of the Law on Marriage and Family, the real estate that Ms. Ha owns is Ms. Ha's private property. Thus, CCV has the basis to receive and notarize the agreement on private property between Mr. Hoang and Ms. Ha.

2.2.3. Notarization of agreement on division of common property of spouses during marriage

The regulation on division of common property of spouses during marriage was first recorded in Article 18 of the 1986 Law on Marriage and Family: "When marriage exists, if one party requests and has a legitimate reason, the common property of spouses may be divided according to the provisions of Article 42 of this Law" [44]. Thus, the division of common property of spouses during marriage is recorded as a case of conditional division of common property of spouses. According to Point b, Section 3 of Resolution No. 01/NQ-HDTP dated January 20, 1988 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of the Law on Marriage and Family, during the marriage period, the husband and wife are entitled to divide their common property "if there is a legitimate reason (such as: the husband and wife are not compatible in temperament but the children are grown up so they do not want to divorce but only want to live separately, therefore, one or both parties request to divide the property, the property will be divided as in a divorce case)" [57].

Inheriting the regulations on division of common property of spouses during marriage from the 1986 Law on Marriage and Family, Article 29 of the 2000 Law on Marriage and Family stipulates:

When a marriage exists, in case the husband and wife invest in separate businesses, perform separate civil obligations or have other legitimate reasons, the husband and wife can agree to divide common property;

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The division of common property must be made in writing; if no agreement is reached, the right to request the Court to resolve it [46].

The Law on Marriage and Family 2000 allows spouses to agree to divide all or part of their common property during marriage.

On the part of the spouses, the request to divide all common property is only made in special circumstances such as having to fulfill such a large financial obligation that dividing a portion of the common property is not enough, or one party requests to divide when the other party has behavior of destroying property, being addicted to drugs, gambling, etc. [39, p. 23].

The provision on dividing a portion of common property has practical significance, consistent with the reality of the common life of husband and wife, when the husband and wife only need a certain amount of property to fulfill their own obligations or invest in their own business, while still having common property to ensure the needs of the family. "Dividing a portion of common property is different from dividing the entire common property in that it does not cause major impacts on the common life of the family, does not destabilize the common life" [39, p. 23]. The 2000 Law on Marriage and Family also foresees the legal consequences of dividing the common property of husband and wife during marriage, when it stipulates: "In the case of dividing the common property of husband and wife, the profits and income arising from the divided property belong to each person's separate property; the remaining undivided property remains the common property of the husband and wife" [46, Article 30]. This is a new point of the 2000 Law on Marriage and Family compared to the 1986 Law on Marriage and Family. This regulation is guided in detail in Article 8 of Decree No. 70/2001/ND-CP.

The agreement on dividing the common property of husband and wife during the marriage period must be made in writing and clearly state the following contents: Reason for dividing the property, the divided property (including real estate, personal property, property rights); in which it is necessary to clearly describe the divided property or the value of the property.

to be divided; remaining undivided assets (if any); effective time of division of common assets; other contents (if any) .

The written agreement on division of common property of spouses must clearly state the date, month, and year of the document and must be signed by both husband and wife; the written agreement may have witnesses or be notarized or certified at the request of the spouses or as prescribed by law [18, Article 6].

The agreement on the division of common property of spouses during marriage has the subject of the common property of spouses. The division of common property of spouses during marriage is a case of conditional division of property, therefore, in addition to accurately determining the ownership of spouses over common property, CCV needs to determine the "reason" for dividing common property of spouses to ensure the legal value of the notarized document as well as the rights and interests of spouses and children in the family.

Notarizing an agreement to divide the common property of spouses during marriage, if done for the common benefit of the spouses and the family, can promote the development of the family economy and limit financial risks for the family. On the contrary, if the notarization of an agreement to divide the common property of spouses during marriage is done for the selfish purposes of one spouse, it can seriously infringe upon the rights and interests of the other spouse as well as family members. Therefore, determining the true intentions of the parties plays an important role in protecting the legitimate rights and interests of the spouses.

The consequences of dividing the marital property during the marriage may result in the termination of the ownership of one spouse to the property. Therefore, the spouses may take advantage of the agreement to divide the common property to transfer the property to the other spouse to avoid fulfilling their obligations. In this case, the agreement to divide the common property

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of the spouses during the marriage will not be recognized by law. Therefore, when discovering a request for notarization of the division of the common property of the spouses to evade the property obligations of one spouse, the CCV must refuse the request for notarization of the agreement to divide the common property of the spouses . In this case, clearly identifying the purpose of dividing the common property of the spouses during the marriage has detected and prevented the act of evading the property obligations of the spouses towards others.

In fact, it is difficult for CCV to detect the division of property between spouses to avoid fulfilling obligations when they have done so intentionally. In this case, CCV can only require the person requesting notarization to commit that the agreement to divide the common property of spouses during the marriage is not intended to avoid fulfilling obligations regarding property.

To clarify the application of law to resolve requests for notarization of agreements on division of common property between spouses during marriage, the author presents and analyzes some situations of notarization of agreements on division of common property between spouses during marriage that may be encountered in practice below :

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L requested CCV to notarize the agreement to divide the common property, which is apartment P501.

In this situation, the property was purchased during the marriage between Mr. H and Ms. P, but it was not until the marriage between Mr. H and Ms. L that this property was formed (received). In this case, how is the ownership of the apartment determined?

In our opinion, the property created by the husband and wife during the marriage includes: property that has been formed or property that will be formed in the future (houses, construction works, etc.). Therefore, in the above case, although this property was formed during the marriage of Mr. H and Ms. L, this transaction was established during the marriage of Mr. H and Ms. P (the apartment is property formed in the future from the common money of Mr. H and Ms. P ). Therefore, the above apartment must be determined as the common property of Mr. H, Ms. P and Ms. L. Therefore, the agreement to divide the apartment of Mr. H and Ms. L must have the consent of the remaining co-owner, Ms. P. However , in the case that Ms. P does not agree to the division of the above property, the notary must refuse the notarization request of Mr. H and Ms. L.

- In 2011, CCV received a request for notarization of the agreement to divide the common property of the couple during the marriage of Mr. Nguyen Van Khanh and his wife, Ms. Nguyen Thi Anh. The agreed property to be divided is the right to use land in Hanoi city.

When checking the documents, the notary determined that the documents were complete and performed the notarization request. However, the notarized document did not record the "reason" for the notarization request.

According to Clause 1, Article 29 of the 2000 Law on Marriage and Family, an agreement to divide the common property of spouses during marriage is a conditional agreement, meaning that there must be a "reason". Therefore, CCV can only notarize an agreement to divide the common property of spouses during marriage if

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The husband and wife have a legitimate "reason" and are in accordance with the provisions of the law. According to the provisions of Clause 1, Article 6 of Decree No. 70/2001/ND-CP, the agreement to divide the common property of the husband and wife during the marriage must be made in writing and clearly state the following contents: "Reasons for dividing property". Thus, the reason for dividing property is one of the mandatory contents in the agreement to divide the common property of the husband and wife during the marriage. The fact that the notary public did not record the reason for dividing property in the notarized agreement to divide the property of the husband and wife during the marriage clearly did not fully comply with the provisions of the law. In this situation, after notarization, Ms. Anh requested the notarized document to cancel the notarized document on the grounds that Mr. Khanh deceived her into dividing the property to live with his lover for personal gain , the notarized document did not state the reason, which is a violation of the law. If Mr. Khanh does not agree to cancel the notarized document, Ms. Anh will only have to request the competent Court to declare the notarized document null and void and request CCV to compensate according to the provisions of law.

- According to the presentation of the person requesting notarization: in 2010, Mr. Thu and Ms. Hien mortgaged the land use rights, which are the common property of the couple, at the Bank. Now, Mr. Thu and Ms. Hien have the need to divide the common property of the couple as follows:

+ Mr. Thu agrees to divide to Ms. Hien all the rights to use the land plot under the use rights of the couple that is mortgaged at the Bank. Mr. Thu will not have any rights or obligations related to the rights to use the land after the agreement to divide the common property.

+ Ms. Hien will pay Mr. Thu the land use right value of 1.5 billion VND. After dividing the property, Ms. Hien is allowed to carry out the mortgage cancellation registration procedures at the competent authority alone. After the competent authority has cancelled the mortgage registration, Ms. Hien is allowed to request the competent authority to register the separate right to use all the above land use rights, and has full authority to manage, use and dispose of that property.

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