Proposal to Improve Legal Regulations on Agreement on Property Regime of Spouses

Their love lasted for 2 years before deciding to get married. However, before registering their marriage, her fiancé asked Ms. T. to sign a marriage contract that he had drafted himself, confirming their assets before marriage.

According to this contract, if a divorce occurs later, the separate property of each party before marriage will belong to that person after the divorce, the other party has no right to dispute. The common property of the couple during the marriage will be calculated based on the efforts of each person when the divorce occurs.

XN also fell into the situation of receiving a marriage contract when preparing to get married. Sharing on a major electronic newspaper, Ms. N. said that her boyfriend is 33 years old this year, currently the director of a company. He has a house, a car, they have known each other for more than a year and are preparing to get married next August.

However, recently he made her sign a contract stating that "if anyone has an affair in the future, they will have to leave the house empty-handed."

After receiving the marriage contract from her boyfriend, Ms. N. was confused about whether to marry him or not. She herself is financially independent and does not support adultery, but she felt that the contract was very cold, more like an economic business. She was worried about how the contract would affect the couple's happiness.

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In fact, this issue has been specifically legalized. The 2014 Law on Marriage and Family has provisions on pre-marital contracts. However, since then, lawyer Tuan Anh (Thien Thanh Law Firm) said that he has not encountered any cases asking for advice on making a marriage contract. Lac Viet Notary Office has also not received any cases coming to notarize a marriage contract since the new law was added.

The representative of the notary office also said: According to statistics in Europe, which are developed countries, only 10-15% of couples sign a marriage contract, a very limited number.

However, the role of the marriage contract is difficult to deny.

According to advice on some divorce websites by lawyer Nguyen Thi Phuong (Dai Viet Law Company Limited), if there is a marriage contract, property disputes during divorce will be resolved more easily.

Some opinions say that signing a prenuptial agreement will affect the feelings and happiness of the family, but in reality it does not because it is voluntary from both sides, helps to clearly distinguish the assets, is just a small agreement to ensure the rights of the parties. Moreover, when the two parties go to divorce, at this time having a prenuptial agreement also helps the divorce to be smoother, avoid unnecessary disputes and hatred, affecting the relationship of the couple later.

Lawyer Nguyen Van Hau, Vice President of the Ho Chi Minh City Bar Association, shared that legalizing premarital property agreements is necessary and meets the needs of society.

Because during marriage, the confusion of the couple's common private property will cause many complications in business relationships, thanks to this property agreement, transactions in economics, civil and commercial exchanges are guaranteed to be carried out. The rights of the couple and the parties involved in the transaction related to the couple's property are protected by law. However, it is also necessary to be skillful and tactful so that the signing of this agreement and notarization does not affect the feelings of both parties.

In our opinion, if there is an agreement (contract) before marriage, complicated divorces and property disputes that last for many years will be resolved.

such as the case of Mr. Dang Le Nguyen Vu's dispute with Ms. Le Hoang Diep Thao over the right to control some affiliated enterprises of the Group.

According to Ms. Thao, while waiting for the court to resolve the divorce, Mr. Vu did not consult the 3-member board of directors but arbitrarily dismissed her from her position as Chairman of the Board of Directors and General Director of Trung Nguyen Instant Coffee Company.

In addition, he also changed the name of his legal representative from Mrs. Thao to his name. The incident attracted a lot of public attention. Most recently, Mrs. Thao sent a petition to the competent authority and was restored to her role as legal representative.

A series of post-marital property disputes that had to resort to the law include: Mr. Bui Duc Minh - Ms. Nguyen Thanh Thuy (daughter of the owner of Bao Son Group) with disputed assets of up to 10,000 billion VND, including common assets, residential land, and common debts that were not clearly divided by the court.

One of the issues that the two sides are still arguing about is the joint assets that the couple contributed to do business. Among them, there are real estate projects with an estimated value of up to 500 million USD such as hotels and famous tourist areas in Hanoi. On April 21, 2011, the People's Court of Hoan Kiem District

- Hanoi has held a first instance trial and decided that Ms. Nguyen Thanh Thuy is allowed to divorce Mr. Bui Duc Minh. The common child between the two is given to his wife - Ms. Thuy - to raise. However, in this decision, regarding the common property, land, and common debt, it is not decided to divide it at the trial but the decision reserves the right to initiate a lawsuit for the dispute over the ownership of common property and common debt for Mr. Bui Duc Minh in another case if there is evidence to prove it and there is a request. It is known that before that, during the trial, the plaintiff, Ms. Nguyen Thanh Thuy, only requested a divorce and child custody after the divorce. Regarding the common property and common debt of the couple, there is no request for the court to resolve it. As for the defendant, Mr. Bui Duc Minh, during the settlement of the case, he also stated that the couple has no common property, common debt and

not requesting a settlement. However, right before the trial, on April 19, Mr. Minh submitted a supplementary application requesting the division of common assets, common debts and accompanying documents and evidence. At the first instance trial, Mr. Minh requested the court to divide the common assets of the couple for the additional shares under the name of Nguyen Thanh Thuy at Bao Son Group Joint Stock Company and 7 other companies under Bao Son Group and to settle the couple's common debt. According to Mr. Minh's presentation at the court, before marrying Mr. Minh, Ms. Thuy had 5% of the shares at Nghi Tam Investment and Tourism Services Company Limited. After getting married, the couple discussed increasing the capital contribution in this company because the company implemented large business projects and changed its name to Bao Son Investment, Construction and Tourism Group Joint Stock Company. The capital under Ms. Thuy's name at this time had increased to 15%. Therefore, Mr. Minh demanded to divide the increased shares under Ms. Thuy's name at Bao Son Group Joint Stock Company and 7 other companies... including Bao Son International Hotel Company Limited - operating Bao Son Hotel in Hanoi and Bao Son Paradise Tourism and Entertainment Company Limited.

- invest in construction and business of Thien Duong Bao Son tourist area in An Khanh

- Hanoi. The remaining companies are in the tourism, real estate and garment business and were all established with capital from Bao Son Group. In the petition sent to the authorities, Mr. Minh said that in order to contribute additional capital to Bao Son Group (and this group later established 7 other enterprises), he and his wife had to mobilize all financial resources to contribute capital for investment. Therefore, Mr. Minh divided the common property according to the regulations for the additional shares in the name of his wife, Ms. Thuy, during their marriage. However, this proposal was not accepted by the court of first instance because the request was submitted late and the changes and additions exceeded the scope of the previous request of the defendant. Therefore, the right to initiate a lawsuit for property disputes in another case was reserved. Also in the petition sent to the authorities, Mr. Minh said that he had pursued the appeal with many requests regarding child care and division of property. Specifically, in addition to the 10% additional shares in Bao Son Group Joint Stock Company and many other assets, the largest is the entire land use rights at the project.

An Khanh - Hoai Duc high-class eco-tourism project, under the name of Nguyen Thanh Thuy - General Director of Thien Duong Bao Son Entertainment Company Limited as the investor, covering an area of 34 hectares. This asset, according to Mr. Minh and some real estate experts, is estimated at a market price of no less than 500 million USD, or about 10,000 billion VND.

The case of the couple of the owner of Five Star International Group, Mr. Tran Van Muoi - Mrs. Pham Thi Huong Giang (Ho Chi Minh City) with assets worth about 2,000 billion VND including: real estate, luxury cars, investment shares. Ms. Giang requested to be divided 50% of the above assets, while Mr. Muoi said that these assets were bought and sold for profit, mainly due to borrowing, so he requested to pay off the debt before dividing.

In December 2012, District 3 Court, Ho Chi Minh City opened the first instance trial of the divorce case between Mr. Tran Van Muoi (Chairman of the Board of Directors and General Director of the Five Star International Group) and his wife, Ms. Pham Thi Huong Giang (Deputy Director of the Atlantic Appraisal Joint Stock Company). The trial took place after 4 years of intense dispute.

Mr. Muoi and Ms. Giang registered their marriage in 1999 and had two children together. Around 2004, the two sides began to have conflicts. According to Mr. Muoi, the reason was that Ms. Giang had an illicit relationship. Ms. Giang also said that Mr. Muoi had an illicit relationship with girls from the West and did not care about his family.

According to Ms. Giang, she and her husband have assets worth about 2,000 billion VND, including: over 10 real estate properties, including villas in Ho Chi Minh City; villas in Vung Tau, Hai Phong and many other houses and lands. Regarding real estate, there is a Camry car. In addition, she and her husband also invested in shares in the following enterprises: Five Star International Group Joint Stock Company (85 billion VND), Hon Dao Viet International Joint Stock Company (8.5 billion VND), Sam My Urban Investment Joint Stock Company (30 billion VND), Vam Co Dong Agricultural Materials Joint Stock Company (16 billion VND). Ms. Giang requested to be divided 50% of these assets.

Mr. Muoi, most of these assets were borrowed to buy and sell for profit, and the capital was used to pay off debts. Due to the economic recession, real estate prices have dropped, and the couple is in a divorce dispute, so they have not been able to sell the house to pay off the debt. Specifically, Mr. Muoi stated that he still owes about 109 billion VND and 6,804 taels of gold. Therefore, Mr. Muoi proposed that the couple's existing assets will be prioritized to pay off the debt, and the rest will be divided.

After the court gave the parties time to negotiate, Mr. Muoi proposed a solution: give Ms. Giang 60 billion VND, Ms. Giang handed over all of her assets to him so that he could decide and settle the debt. However, Ms. Giang did not agree with this plan and the battle that followed did not end.

Another equally sensational post-divorce property dispute occurred between supermodel Ngoc Thuy and Mr. Nguyen Duc An. After the divorce, the supermodel’s ex-husband demanded that his ex-wife return the property worth up to 288 billion VND. The incident occurred in 2011 and has yet to be resolved.

The property dispute between Vietnamese-American businessman Nguyen Duc An and supermodel Ngoc Thuy began in 2011. Since their marriage, Mr. An has given Ms. Thuy his name on many of the properties he invested in Vietnam.

When divorcing, the assets that Mr. An declared to "reclaim" his ex-wife included 13 plots of land and villas in Phan Thiet city, Binh Thuan province; 9 luxury apartments in District 1, 3 plots of land in Vung Tau city. In addition, this tycoon also owns a villa in Binh Thanh district, bank savings, money to buy shares of the Bank New Venture project, 31% of shares in Sao Mai Company in Vung Tau city, a Vespa and 7 cars. The estimated value of these assets is up to 288 billion VND. The lawsuit over these assets has not yet been concluded.

The 1,000 billion VND divorce of the former FPT vice president. In 2007, the Vietnamese stock market witnessed the most expensive divorce in history between FPT vice president Le Quang Tien and his wife. After the divorce, Mr. Tien divided his shares in half and transferred ownership of 1.8 million FPT shares to his wife.

In 2007, this amount of shares was worth about 1,000 billion VND. Although this divorce was costly, there was no dispute between the two parties.

If the husband and wife have signed an agreement on the property regime of the couple before marriage, the above disputes will be resolved more easily and conveniently.

3.2. Recommendations for improving legal regulations on agreements on property regimes of spouses

3.2.1. Recommendations to improve the law on property regime agreements between spouses

The author does not make recommendations based on the practice of resolving family marriage cases because up to now we have not collected any actual cases of disputes over marriage agreements (contracts) at the Court. The author makes recommendations based on learning from the laws of Australia, the United States and the psychology of Vietnamese people.

In addition to the recommendations on the statutory property regime of spouses, in the coming time when providing guidance on the 2014 Law on Marriage and Family, I think it is necessary to add the following contents when applying the estimated property regime:

- The law needs to further stipulate how to handle the case of amending or supplementing the content of the agreement that affects the rights of a third party.

- It is necessary to set out the conditions for the property agreement to be legally binding, such as: The agreement is signed by all parties; before signing the agreement, the parties have received independent legal advice, regarding the validity of the agreement, the advantages and disadvantages of signing the agreement and before signing the agreement, the parties are provided with a certificate from the assistance center confirming that it has assisted the customer on the contents prescribed by law.

- There should be regulations on termination of property agreements. The 2014 Law on Marriage and Family only provides regulations on amending and supplementing the content of the agreement.

Regarding the property regime and the agreement between spouses that is declared invalid when it does not meet the conditions prescribed by law, in my opinion, it is necessary to supplement the cases for terminating the agreement on property between spouses, so that the content of the provisions on the property regime between spouses according to the agreement can be fully demonstrated.

The 2014 Law on Marriage and Family only allows spouses to choose a property regime by agreement before marriage, that is, before the marriage relationship is established and it takes effect from the date of marriage registration. This means that if the spouses do not have an agreement to choose this property regime before marriage, then of course they will no longer have the right to choose this property regime, and the statutory property regime will take effect.

According to the author, this regulation is currently not feasible because it comes from the Vietnamese mentality of “valuing feelings”, it is impossible to raise the issue of “agreeing on property” when a “marital relationship” has not been established (legally). It becomes the biggest “obstacle” to getting married. At least, it is currently considered a “pragmatic” agreement that affects emotional relationships.

However, the author does not reject the regulation, it is necessary for the future because in the integration process, the thinking of Vietnamese people is becoming more and more "open". At that time, they will think in the way of saying "losing favor first, winning favor later", that is, if there is an agreement in advance, if there is a problem in the marriage later, it will be easy to resolve the property issue for both husband and wife. According to the author, it is very necessary to expand the regulation on the agreement "property regime of spouses according to agreement" in the stages during and after the marriage. It corresponds to the stages of dividing common property during the marriage, when divorcing and after the divorce. Because, if disputes are likely to arise, they have the right to agree to resolve the dispute. This shows that the freedom of agreement and self-determination in civil matters of spouses is guaranteed.

Researching issues on the property regime of spouses, the application of this regime in trial practice and notary activities, it can be seen that the legal system in general and the law on the property regime of spouses in particular

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