Practical Application of Regulations on Division of Joint Property of Spouses During Marriage

However, both the 2005 Civil Code and the 2000 Law on Marriage and Family do not have specific provisions on how property relations are restored.

CONCLUSION OF CHAPTER 1

Along with the general economic development, the family's " economy " is also increasingly improved, and couples are increasingly creating and accumulating more assets. Therefore, property is no longer a sensitive, secondary issue in the traditional marital relationship, but issues related to property in general and the common property of spouses in particular are given great attention and concern by spouses. At the same time, the law has also provided many regulations on the property of spouses, including the division of common property of spouses. Due to the special nature of the marital relationship, the division of common property of spouses also has its own characteristics compared to the division of property of other forms of common ownership, such as only being divided when it falls under the cases prescribed by law, special division mechanisms, etc. Current laws specifically stipulate cases, conditions, and consequences of dividing common property, not only to help enforce the law correctly and conveniently, but also to protect the interests of the family, avoiding the situation where spouses arbitrarily agree to divide common property, disrupting the common property regime of spouses and affecting family life. The 2000 Law on Marriage and Family stipulates three cases of dividing common property of spouses: division during the marriage; division upon the death of the husband or wife, and division upon divorce. Compared to previous legal documents, the 2000 Law on Marriage and Family has more specific and detailed provisions, however, the 2000 Law on Marriage and Family still has shortcomings, making the process of applying the institution of dividing common property of spouses in practice difficult and problematic. That is the content we continue to consider in Chapter 2.

Chapter 2

PRACTICAL APPLICATION OF CURRENT LEGAL PROVISIONS ON DIVISION OF COMMON PROPERTY OF HUSBAND AND WIFE

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2.1. PRACTICAL APPLICATION OF REGULATIONS ON DIVIDING COMMON PROPERTY OF HUSBANDS AND WIVES DURING MARRIAGE

Division of common property of spouses during marriage is not a traditional institution of Vietnamese Marriage and Family Law, but it is formed from the requirements of practice. In the context of increasingly diverse economic and social activities, spouses are increasingly participating in various social relations. In particular, at present, when the need for separate business investment of spouses is quite common, separate civil obligations are also increasing rapidly along with the diverse development of civil exchanges in which spouses participate, the legal provisions on division of common property of spouses during marriage become more meaningful. In reality, many couples do not live together in the same place because one person has to work far away, even go to work abroad. Therefore, they do not have the conditions to jointly manage and use common property. Meanwhile, to have money to serve the family's living needs or have capital to invest in business... the husband and wife at home may need to carry out transactions related to common property such as transferring, mortgaging land use rights, housing... In principle, transactions related to land and housing require the signatures of both husband and wife. In that situation, even with the verbal consent of the absent person, the transaction is not legal. These difficulties partly limit the initiative of the husband and wife in using and deciding on property and many investment and business opportunities are unfortunately lost. Therefore, currently, many couples choose the solution of agreeing to divide common property for convenience in managing and using property. On the other hand, with very flexible regulations such as easy division method - husband and wife agree on their own, if no agreement

If they can, they have the right to request the court to resolve it; with a simple division procedure - not requiring notarization in all cases, the institution of dividing common property of spouses, in practice, has created favorable conditions for spouses to agree to divide common property during marriage when they wish to divide and when that wish satisfies the conditions for division according to legal regulations. In reality, the number of cases of spouses dividing common property during marriage is not small. However, because the procedure for dividing common property in this case is not required to go through a competent state agency (Notary Public, Court), it is very difficult to have specific and accurate statistics on the number of cases of spouses dividing common property during marriage in reality. A couple can only agree to divide a certain amount of cash, a certain amount of gold, precious stones... for the wife to open a store, for the husband to invest in stocks, etc. In such cases, the couple usually only make a written agreement with each other (in the form of a memorandum between the couple) but do not notarize the agreement.

The fact that the law stipulates simple procedures and methods of division, on the one hand, creates favorable conditions for spouses to easily divide their common property when necessary, but on the other hand, it also contains the risk of abusing legal provisions in practice. At the same time, the law on dividing the common property of spouses when applied in practice still reveals many difficulties and inadequacies, especially the contents related to the conditions, principles and legal consequences of dividing common property during marriage.

2.1.1. Practical application of regulations on conditions for dividing common property of spouses during marriage

Naturally, the life of a married couple after marriage will form a process of accumulation to create a common property of the couple. In principle, the property formed during the marriage is considered common property and will be managed, used and decided by both spouses on the basis of equality. In the view of the legislator, the common property between husband and wife

The difference between the common property of two people who are not husband and wife is that, during the period of cohabitation, in principle, the common property of husband and wife is a unified joint ownership and cannot be divided. Only in some special cases does the law accept that husband and wife can divide their common property even when the cohabitation still exists. However, because it is recognized that these are only special situations in the cohabitation of husband and wife, the law does not allow the division of such property to be carried out unconditionally, and the husband and wife can divide it if they want, but stipulates that if they want to divide common property while the marriage still exists, they must satisfy certain conditions. One of the conditions that must be complied with when a husband and wife want to divide common property during the marriage is that there must be a reason for the division of such property. The reason for dividing common property in accordance with legal regulations is one of the content conditions to determine the legality of dividing common property during the marriage of spouses. "While the marriage still exists, in case the spouses invest in separate businesses, perform separate civil obligations or have other legitimate reasons, the spouses can agree to divide common property..." [34, Article 29].

One of the reasons mentioned by the legislator is the division of common property to perform separate civil obligations . The separate civil obligations of husband and wife are understood as obligations guaranteed to be performed by the separate property of the husband and wife, that is, the husband and wife are responsible for contributing fully to the payment of the obligation. The question now arises, with what kind of separate civil obligations, how much value of assets spent to perform the obligation, the husband and wife have the right to request the division of common property, the positive law does not specifically stipulate. According to the common way of thinking, the husband and wife cannot request the division of common property of great value just to perform a separate civil obligation of small value or a separate civil obligation that is completely within the ability to perform with the available separate property of the husband and wife, except in cases where the separate properties have value and are also the properties with income that are the main source of income for the family. In order to consider the performance of separate civil obligations as a reason for spouses to be entitled to divide common property during marriage, " the obligations must be of the utmost importance."

determined Not only because of the need to pay a very small private debt but also to divide a large amount of common property " [12, p. 169]. Therefore, it is necessary to evaluate and consider the importance of the obligation as well as compare the value of the separate civil obligation with the value of the existing separate property of the obligated person before deciding to divide the common property. In fact, the couple does not need to perform the above steps and can still easily proceed to divide the common property if both spouses agree to divide the common property so that the husband and wife have the conditions to perform their separate civil obligations. However, the couple may not agree with each other on the necessity to divide the entire common property or the large amount of common property as requested by the obligated party. Therefore, the couple does not agree to divide the common property. At this time, the Court is required to carry out the above steps of analysis, evaluation and comparison to be able to make a reasonable decision on whether to divide or not; the scope of the common property is divided in accordance with the obligation. payment but it is difficult to cite a specific legal provision as a basis for the above decisions. Therefore, the Court's judgment on the division of common property of spouses during the marriage may not be convincing to the parties.

Another reason for dividing common property prescribed by law can also cause certain difficulties and disputes in the process of implementing the law in general and applying the law in particular, which is the regulation on dividing common property when there is another legitimate reason . The other legitimate reason prescribed in Article 29 of the 2000 Law on Marriage and Family is very general and there are no specific guiding regulations in sub-law documents. Many reasons have been given and are temporarily considered legitimate reasons as prescribed in Article 29, for example, the husband or wife often has acts of dissipating property, so it is necessary to divide common property to ensure family economy; the husband or wife is often absent from the place of residence, does not have the conditions to manage property, etc. However, the above reasons are only arguments of researchers and are only for reference for the Court when resolving disputes and the notary office when notarizing the agreement document, not mandatory provisions of law.

Although "other legitimate reasons " is an unclear provision in the law, in reality, many specific reasons have been "incorporated" into a common reason under the name of "legitimate reasons" and then it has become a common reason in the process of applying the regime of dividing common property during marriage in practice. For example, the agreement on dividing common property during marriage No. 014693/2011, Book No. 7TP/CC-SCC/VBTT, of Mr. Nguyen Trung Kien and Ms. Nguyen Thi Thu Phuong, signed and notarized at the Hanoi Notary Office on July 9, 2011, stated the reason for dividing common property as: " Each person lives separately with a child. Therefore, we agree to divide the house and land to facilitate the use, management and disposal of property, which is the house and land use rights ". So, is the reason given by the couple as above a legitimate reason for them to be entitled to divide the common property according to the provisions of Article 29 (cited)? In reality, the reasons given by the couple to agree to divide the common property are often similar to the cases of Mr. Kien and Ms. Phuong, for example, the reason for the couple's broken relationship, preparing to separate or divorce... (see Appendix).

According to the law: " Notarization is the act of a notary certifying the authenticity and legality of a contract or other transaction (hereinafter referred to as a contract or transaction) in writing that must be notarized according to the law or that an individual or organization voluntarily requests notarization " [42, Article 2]. So, if a couple requests notarization of a document agreeing to divide common property during marriage for a reason that the couple considers a legitimate reason, what regulations allow the notary to assess whether that reason is legitimate or not to confirm the authenticity and legality of the agreement? In response to the above question, Mr. Vo Dinh Nho - Deputy Head of Notary Office No. 4, Hanoi City said: Currently, the law and guiding documents do not have specific regulations on assessing whether those reasons are legitimate or not. Therefore, in practice, we have no basis for assessment (see Appendix).

Thus, the lack of regulations and official interpretations of what is a legitimate reason, or in other words, what criteria a reason is considered legitimate based on, has caused considerable difficulties not only for the spouses and the notary public when enforcing the law but also for the Court in the process of applying the law when resolving the request for division of the couple's common property. For example, when the spouses cannot reach an agreement on the division of common property, one party does not agree to the division because the reason given by the other party does not fall under the case of division for separate business investment or performance of separate civil obligations, then with the current regulations, it is very difficult for the party requesting the division to convince that the reason given is one of the legitimate reasons recognized by law.

In the above case, even if the party requesting the division requests the Court to resolve the matter in accordance with the provisions of Article 29 of the 2000 Law on Marriage and Family, the Court will also face similar difficulties when there is no basis to assess what is a legitimate reason. For example, the First Instance Judgment No. 05/2008/HNGD-ST dated February 25, 2008 of the People's Court of Hai Duong City on the first instance trial on the division of the common property of the couple during the marriage between Mr. Luong Quang Nhi and Ms. Pham Thi Xuyen, was appealed by Mr. Nhi. One of the contents of the appeal is that Mr. Nhi does not agree with the reason for division given by the Court and Ms. Xuyen. Therefore, he does not agree to divide the common property during the marriage.

The first instance judgment of the Hai Duong City People's Court and the appeal judgment of the Hai Duong Province People's Court both ruled that Mr. Nhi and Ms. Xuyen should divide the common property according to Ms. Xuyen's request based on Article 29 of the 2000 Law on Marriage and Family. The reason given by Ms. Xuyen was "the couple had conflicts and had been living separately and financially since 1990, but because of their old age and their grown children, they did not divorce but only requested to divide the common property for convenience in living" which was a legitimate reason.

The law stipulates that spouses only have the right to request division of common property when there is a reason stipulated by law, such as when there is a need to invest in separate business, perform separate civil obligations or have other legitimate reasons. This provision aims to protect family interests, protect the common property regime of spouses, and limit

The situation of husband and wife dividing common property is widespread. However, through the judgment on the division of common property of Mr. Nhi and Mrs. Xuyen at the People's Court of Hai Duong province, it can be seen that although the law does not stipulate " spouses having conflicts, separate economic" as one of the reasons for dividing common property during marriage, the practical application has accepted it as one of the legitimate reasons for dividing common property of husband and wife during marriage along with two reasons (separate business, performing separate civil obligations) stipulated by the Law. Thus, the path for the Law to come into practice has been much different from the intention of the lawmakers when drafting Article 29.

On the other hand, when the law has an open provision " or there is another legitimate reason " without specific provisions or further guidance on this provision, the two reasons for dividing property stipulated previously (business investment and performance of separate civil obligations) cannot be a "barrier" to restrict the husband and wife from dividing their common property because they can give many different reasons that they consider to "fall" into the third case of "there is another legitimate reason" that the notary office and the Court do not have a standard to evaluate. And in reality, the assessment of whether the reason for dividing property is legitimate or not is heavily subjective to the notary and the judge. That can lead to the consequence that the husband and wife abuse the provisions of the law to divide the common property when it is not necessary and the arbitrariness of public authorities. Besides, the intention of the legislator to prevent the division of common property to avoid property obligations when stipulating the conditions for division (reasons) cannot be implemented by the current general regulations.

At the same time, the law stipulates that notarization of the agreement on division of common property between spouses is not a "mandatory" provision, so if the spouses do not voluntarily request notarization, the notary has no basis to notarize (i.e. confirm the truthfulness and legality) of the agreement on division of common property between spouses. This creates a loose mechanism that is difficult to control for agreements on division of common property between spouses during marriage. Along with the provision that the Court only intervenes when the spouses cannot reach an agreement and request the Court to resolve, the provisions on the reasons for division of common property are not being

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