The communal nature of marriage leads to the husband and wife working together and having the same will in creating common property. In real life, the contribution of husband and wife to common property can be equal, due to the difference in gender characteristics, occupational conditions, labor... decided, then one side of the husband and wife cannot reduce the ownership rights of the other side. For example: The wife does housework, the husband goes to work and earns 1 billion, then this 1 billion is the common property of the husband and wife, not the separate property of the husband, even though the wife did not create the property. Because since ancient times, our ancestors have had the saying: "the husband's property is the wife's work", that is the conclusion of many generations that still holds true today. Every success of the husband to reflect tangible strength is direct support in material and labor; or invisible spiritual support for the husband who has done housework, taking care of the family, children and other jobs for him, so that the husband can wholeheartedly go to work. Thus, the regulation that the common property of the husband and wife is a unified common property is completely reasonable. It both recognizes the equal role of the wife in creating property and correctly reflects the purpose and nature of the Law on Marriage and Family of our country, which aims to build a happy family for the common good.
Point b, Clause 2, Article 59 of the 2014 Law on Marriage and Family also stipulates: "The labor of husband and wife in the family is considered as income-generating labor" [42]. Thus, the law has provided for ensuring the rights of women because when doing housework without directly creating wealth, the ownership rights are still equal to those of the husband. The 2014 Law on Marriage and Family creates conditions for wives to have the opportunity to discover their abilities equally. Regardless of their function, production or reproduction, the ownership rights are still guaranteed. Because due to the division of labor, each spouse performs different functions, and labor in the family does not directly generate income but is considered income. This provision is aimed mainly at women. Because women
Women often take on the reproductive function that has long been looked down upon and unjustly oppressed, but is now recognized as having an important role equal to that of the husband. The 2014 Law on Marriage and Family provides that it is mainly directed towards wives, but it does not mean that they are privileged or unequal, but only recognizes the rights they have long deserved.
Protect women's rights to possess, use and dispose of common property regardless of the contribution of each party.
Article 233 of the Civil Code, Clause 1, Article 35 of the 2014 Law on Marriage and Family stipulates: "The possession, use and disposal of common property shall be agreed upon by the husband and wife" [42]. To have stability and safety in the family's material foundation, on the principle of equality, respect the will of both husband and wife. Clause 2, Article 35 of the 2014 Law on Marriage and Family stipulates: "The disposal of common property must have a written agreement of the husband and wife in the following cases: a) Real estate; b) Personal property that, according to the provisions of law, must be registered for ownership; c) Property that is the main source of income for the family" [42]. The husband cannot arbitrarily decide on important assets for the family without discussing with his wife. This agreement is very meaningful, first of all, it brings equality in terms of the wife's will. Besides, it helps maintain a happy and prosperous family life, because the possession, use and disposal of assets transfer or increase or decrease the combined common property. Assets of great value play an important role in ensuring a happy family life. The law stipulates that there must be an agreement between husband and wife to ensure the principle of equality between husband and wife as well as better protect the rights of women to common property.
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Husband and wife are equal in creating, possessing, using and disposing of common property. The law does not distinguish between economic functions performed by the husband or wife, but rather it is the common responsibility of both spouses. In cases where, due to gender, health, occupation, or income, the work
Less contribution does not reduce or lose their ownership of common property, family labor is considered equal to labor that creates material wealth. In transactions with common property as the subject, husband and wife are equal when participating in transactions with large common property value, common property used for business, property that is the sole source of income for the family, there must be a written agreement between both husband and wife.
2.2.2. Protecting the wife's property rights when the couple chooses a property regime by agreement
In today's life, marriage and family are greatly influenced by many factors. The solid foundation for marriage for both men and women is love. When there is still love between two people, everything is easily resolved. However, when love is no longer there and the issue of divorce is raised in practice, many property disputes occur that are very difficult to resolve. The difficulty here is determining the property of each spouse when divorce occurs. The 2000 Marriage and Family Law only recognizes property formed during marriage as common property, so it does not cover the arising issues. In addition, according to the provisions of this Law, determining common property and separate property is not simple. The 2014 Marriage and Family Law stipulates the agreement to establish the property regime of spouses. From a legal perspective, the property rights of the husband and wife are more guaranteed through the specific establishment of the common property and separate property of the couple before the date of marriage registration. From a social perspective, pre-marital property agreements seem to be widely recognized in people's lives. The reason may also be due to our society's concept of marriage: marriage is a special bond between two parties. This bond does not depend on material calculations, but is based on love, equality and voluntariness between husband and wife, with the aim of building a lasting relationship. However, viewed from a rational perspective, the agreement to establish the property regime of the wife
The husband also contributes to ensuring the property rights of both the wife and the husband when a divorce occurs. According to the provisions of law, in the case where the two parties to a marriage choose a property regime by agreement, this agreement must be made before the marriage, in the form of a notarized or certified document. After the agreement on the property of the spouses, this agreement is established from the date of marriage registration. Thus, through the agreement on the property of the spouses, the common property and separate property of the spouses are determined. On that basis, the rights and obligations of the spouses with respect to common property, separate property and related transactions will be determined. The basic content of the agreement on the property regime of spouses is specifically stipulated in Article 48 of the Law on Marriage and Family 2014. With the above provisions, it is clear that the determination of property made before marriage not only ensures the property ownership rights of the husband and wife but also acts as a fair and progressive treatment for both husband and wife. It can be seen that the property ownership rights are firmly guaranteed through the pre-marital property agreement regime. However, in the current social conditions of Vietnam, to implement this provision in practice, there are still many problems that need to be solved.
Regarding the time of establishing the property regime of spouses : According to Article 47 of the 2014 Law on Marriage and Family, when a married couple chooses a property regime by agreement, this agreement must be made before the marriage. In terms of personal rights, establishing a property regime by agreement is the right of the couple, so the time of establishment must be based on the wishes and specific conditions of the husband and wife. Therefore, if the law only limits the agreement on the property regime of spouses to be established before marriage, it does not fully ensure the property rights of the husband and wife. Suppose, before marriage, the husband and wife have very little property, so the husband and wife do not intend to establish a property regime by agreement. During the marriage, the husband and wife inherit or create a large amount of property and wish to establish a regime.
The law does not allow property by agreement. The choice of property regime by agreement is not only understood to have a personal meaning for the husband and wife, but also has the meaning of dividing property for a third party other than the husband and wife. If the above regulation is provided, it will not expand the rights of the husband and wife in deciding on property.
For marital assets that have not been agreed upon or the agreement is unclear: In this case, the law again refers to the application of Articles 29, 30, 31, 32 of the 2014 Law on Marriage and Family and the corresponding provisions of the statutory property regime to resolve the issue. Thus, it seems that the law still gives priority to the direction of applying the provisions of the law to determine the marital assets. In cases where the assets have not been agreed upon or the agreement is unclear, the spouses can still be allowed to reach an agreement without having to apply the provisions of the statutory property regime to resolve the issue. In fact, the will to dispose of the agreed assets that are not illegal is often inconsistent with the determination of assets according to the provisions of the law.
The content of the agreement still has many shortcomings : According to the provisions of the current Law on Marriage and Family and Decree No. 126/2014/ND-CP dated December 31, 2014, it only provides general regulations on marital property, principles of division and determination of common property and separate property of husband and wife during marriage. Article 125 of Decree No. 126/2014/ND-CP also only states the agreement on the property regime that spouses can choose: spouses can have common property, separate property during marriage; marital property during marriage is all common property. Thus, the determination of common property, separate property after divorce is based on the principle of property division according to law. With the above provisions, the property regime according to the agreement has not brought much meaning in practical implementation. One problem is that the property regime under the agreement has not clearly stated the provisions that if a couple divorces, which part of the property the wife or husband is entitled to from the common property of the couple or the part
any property from the separate property of one spouse. Thus, the wife's rights to property in the above cases are not specifically guaranteed. Furthermore, the 2014 Law on Marriage and Family does not stipulate a separation regime, but in reality, many couples are separated. So if the couple separates and the wife takes care of the child, how the wife is entitled to the property is not specifically regulated by the agreed marital property regime.
In short , the fact that the couple clearly defines their property ownership before marriage is also a way to protect the property rights of both parties when a divorce occurs. This regulation helps to ensure the clear identification of the couple's assets and better ensures the division of the couple's assets after the divorce. In general, the regulation on the agreement on the property of the couple also helps to ensure the wife's property rights when dividing the couple's assets upon divorce.
2.2.3. Protecting women's rights to establish, possess, use and dispose of their own property
Protecting women's rights through defining private property
The 2014 Law on Marriage and Family, in addition to recognizing the right to joint ownership, also recognizes the right of women to own private property. The law respects the rights of each individual, creating conditions for women to have a certain independence in property to resolve personal matters. Because in addition to family relationships, women have many other indispensable social relationships, especially participating in civil and economic transactions.
The current Law on Marriage and Family respects women's rights by providing women with the right to own private property. Clause 1, Article 44 of the 2014 Law on Marriage and Family stipulates:
Separate property of husband and wife includes property that each person had before marriage; separate inherited property, property given to each person separately during marriage.
during the marriage; property divided separately for the husband and wife according to the provisions of Articles 38, 39 and 40 of this Law; property serving the essential needs of the husband and wife and other property that according to the provisions of law is the separate property of the husband or wife [42].
Thus, the 2014 Law on Marriage and Family has determined the separate property of women based on the time of arising before marriage; based on the decision of the person leaving the inheritance or the person giving the inheritance; based on the event of dividing the common property during the marriage. On each basis, the rights of women are established objectively, guaranteed equally with the husband.
First, the wife's property before marriage. The law has guaranteed the wife's rights based on the nature of the property. The property before marriage is not created on the basis of family life, not based on the nature of the marriage. If the law stipulates that it is included as common property, it will deprive the citizen of the right to decide. The 2014 Law on Marriage and Family has created conditions for women to have the right to decide on property that is essentially private property. Thus, the lawmakers have provided for women with equal conditions to fully develop their ability to generate income and assets to enrich themselves and society. The creation of assets and income is demonstrated through labor, production and business, or by transferring ownership from another entity.
Second, the property that the wife inherits or is given to her separately during the marriage. The provision for the woman to enjoy the same amount as the husband from the property that is gifted or inherited ensures the woman's right to inherit the property. Based on the will of the person who gives the inheritance and the person who leaves the inheritance, the wife has the right to enjoy that property and it is considered her own property.
Third, marital property is divided in the case of division of common property during marriage; establishing ownership rights to the benefits and income arising.
from the wife's separate property during the marriage. The grounds for establishing those separate property rights are all based on objective grounds that ensure the wife's equality with respect to her separate property. Based on objective grounds such as: after dividing the common property; and the benefits from the separate property, both husband and wife are guaranteed equal rights.
Thus, in determining a woman's private property, including the basis for determination and the origin of the property, it is built on the principle of equality between husband and wife. Based on the objective, accurate and correct assessment of each party's efforts, the law stipulates ensuring equality by recognizing the role of each party as equal, and providing for each individual to equally enjoy the fruits of development. The basis for determining property is therefore very objective; at the same time, the property regime also ensures the highest equality, regardless of gender.
Protect the right to possess, use and dispose of private property of individuals.
women
The 2014 Law on Marriage and Family recognizes women's right to private property.
women. In family life, the wife has the right to include her private property in the common property to unify without wanting to distinguish between common and private property. However, to stabilize civil transactions and facilitate dispute resolution, the 2014 Law on Marriage and Family stipulates that for private property of great value or real estate, when included in the common property, it is necessary to make a written document with the signatures of both husband and wife. This is a regulation that comes from respecting and evaluating the rights of the wife and husband as equal.
Furthermore, lawmakers also envisage the principle of freedom of ownership over each party's private property . "Husband and wife have the right to possess, use, and dispose of their private property" [42, Clause 1, Article 44]. In the event that the person with private property is unable to directly manage his or her private property due to health conditions, long business trips, etc., he or she can authorize