Protecting the Wife's Right to Housing After Divorce

property rights of women when divorcing. However, considering this error is only qualitative and very difficult to quantify because the marriage relationship is a personal relationship associated with each husband and wife. The violation is more or less serious, finding more or less serious violations depends on many factors such as the circumstances of the case, the level of awareness of the judge, the sincerity or lack of sincerity of the wife and husband in resolving the divorce. Therefore, to be more specific, the law needs to have more specific regulations on this issue so that when adjudicating, there is a more complete basis. Putting this regulation in the context of domestic violence in our country today, it can be seen that this is also a regulation that contributes to protecting the property rights of women when divorcing. In fact, after a period of living together, the husband and wife together create a fairly large amount of common property, but in many cases of domestic violence, the wife is often beaten and abused. Because they cannot live together anymore, they must proceed with divorce. When dividing common property, taking into account the fault of each party within the scope of the rights and obligations of the husband and wife, it also contributes to better ensuring the property ownership rights of the wife in the above case. The above regulation is also very difficult in the issue of quantifying the fault to determine the common property. It is thought that the law stipulates as above to basically ensure the rights of one of the parties when the other party violates the fault within the scope of the rights and obligations of the husband and wife. However, the quantification and assurance of the property ownership rights of the wife and husband to what extent and how practically must be based on each specific case and depends largely on the experience and judgment of the team of judges participating in the trial.

Second, protect the wife's property rights in the event of a transaction with a third party.

In relation to third parties, the law also has provisions to protect the rights of women in divorce. According to general regulations, the property rights and obligations of spouses towards third parties remain valid.

after divorce if the wife, husband and the third party do not have another agreement. The above provisions have contributed to ensuring the rights of the third party when dealing with the couple who request a divorce. However, the law is also clearer about the common rights of the couple with the third party that are guaranteed, as well as the obligations of the husband with the third party that cannot be lost after the divorce. To ensure the rights of the wife, the law stipulates the joint responsibility of the common obligations of the couple. Accordingly, when dealing with a third party, if the wife cannot fulfill her property obligations, the husband will have to fulfill this obligation. This also ensures the rights of the wife to own the wife's property in a certain aspect. According to the provisions of the law, to ensure the right to own property, the law stipulates the common obligations of the couple, which are: obligations arising from transactions established by mutual agreement of the husband and wife, the obligation to compensate for damages for which the husband must also be responsible according to the provisions of the law; Obligations performed by the husband or wife to meet the essential needs of the family; Obligations arising from the possession, use, and disposal of common property; Obligations arising from the use of separate property to maintain and develop common property or to create the main source of income for the family; Obligations to compensate for damage caused by children that, according to the provisions of the Civil Code, parents must compensate; Other obligations as prescribed by relevant laws. The provisions on common obligations as above stipulate that when the wife cannot perform her obligations in a common transaction with a third party before or after the marriage, the husband must perform that obligation. In addition, the law also stipulates that if the husband establishes and performs a transaction with a third party not for the needs of the family, the husband must be responsible with his own property. This is a newly added provision but meets the requirements quite well in practical application. In reality, there are many cases where the husband makes loans for his own personal reasons, but when a third party often requests to take the couple's common property to pay off the debt. The above regulation is intended to

protect the wife's property rights, avoiding the wife from having to perform obligations that are performed by the husband without meeting the family's needs. To further ensure the wife's property rights, the law stipulates that if the husband has property obligations arising from his own illegal acts, he must take responsibility with his own property.

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Third, protect the wife's property rights in case of living with the family.

In the case where the wife lives with her family and divorce occurs, the law also needs to protect the wife's property rights in this case. In the first case, the property of the husband and wife in the family's common property cannot be determined, the law still ensures that the husband and wife are entitled to a portion of the family's common property. The wife's portion of the common property is based on her contribution to creating, maintaining, and developing the common property. The law also ensures the wife's property rights in this case based on the principle of agreement. If the parties cannot reach an agreement, they must go to the Court. In the second case, the husband and wife live with their family and the property of the husband and wife in the family's common property can be determined by portion, then when they divorce, the property of the husband and wife is divided according to the principle of dividing common property analyzed above.

Thus, previously the Law on Marriage and Family did not regulate this case, but in reality, when divorcing, many of the above cases occurred. Therefore, when there are regulations clarifying the property ownership rights of the wife in the case of living with the family, it is a very good basis to ensure the rights of women when divorcing.

Fourth, protect the wife's property rights in the event of division of land use rights.

The recognition of land use rights that husband and wife acquire after divorce is the common property of the husband and wife, except in cases where the husband and wife inherit.

Separate, separate gift is also a regulation to ensure the wife's property ownership. In fact, in many cases in the family, due to the business process, the husband has the economy and conducts transactions to buy and sell land use rights. When making a land use rights certificate, the owner's name may only be recorded as the husband's name. Meanwhile, the wife has to take care of the family and does not know about the husband's business. When a divorce occurs, the husband considers the created property as his own and in many cases the wife still accepts that. Thus, the wife's property ownership is not guaranteed. However, with this specific regulation, the law indicates that in this case, the wife still has full ownership of the property created by the husband. The law also creates a more protective mechanism for the wife's property rights by stipulating that if the husband cannot prove that the above property is separate property, according to the regulation, it is the common property of the husband and wife. In addition, the regulation that the land use rights of husband and wife acquired after marriage are the common property of husband and wife also contributes to ensuring the rights of the wife when there is a transfer of land use rights to a third party. In reality, there are many cases of land use rights transfer carried out by only one party, the husband. Such cases have occurred and the wife is not aware of the establishment of the above transaction, and cannot protect her property ownership. And if she can protect it, she must go through very complicated, time-consuming and laborious property claim litigation. In addition, the consequence is that civil matters in these cases are very complicated, affecting the rights and interests of third parties. In addition, the law protects the rights of the wife through the regulation that if there is no written agreement of both husband and wife on the transfer of land use rights, the transaction may be declared invalid by the Court according to the provisions of the Civil Code.

Fifth, protect the wife's property rights in case of division of the couple's common property used for production and business.

The 2014 Law on Marriage and Family has provisions on dividing the common property of spouses put into business to clearly define the property ownership of spouses. According to the provisions of the law, if the wife or husband is conducting business activities related to common property, they have the right to receive that property and must pay the other party the value of the property they are entitled to, unless otherwise provided by the law on business. With the above provisions, the rights of both spouses are guaranteed. This provision not only protects the wife's property ownership rights but also helps the parties stabilize their production and business situation, work, life, and income from the exploitation of common property without being affected by the divorce of the husband or wife. From the perspective of property, tangible assets of spouses put into business can be implemented by one party having the right to receive the property and pay the other party the value of the property they are entitled to. However, if the property is intangible, it is very difficult to divide the common property in this case, for example: the common property of the husband and wife is the trademark that the husband and wife built together in the business process... The above cases raise the question of how difficult it is to determine the portion of the property that must be paid to the other party so that the wife or husband has the right to retain the common property to continue doing business.

However, with the above provisions, the Law on Marriage and Family has aimed to protect the wife's rights after divorce in the division of common property that the husband and wife put into business.

2.2.6. Protection of the wife's right to housing after divorce

After marriage, the husband and wife must establish a common life together. Normally, the husband and wife will live together and establish a certain place to live. The husband and wife can live with both families or can create a

establish a separate house to live in or can live together in a certain place. However, when a couple divorces, it will usually lead to the division of assets of both the wife and the husband. The division of assets may include the division of the couple's residence. Therefore, it is also necessary to consider protecting the wife's rights through protecting the wife's rights to residence after divorce.

The first case is dividing the house when the house is the common property of the husband and wife.

When the house is the common property of the husband and wife, the division of property is based on the principles stipulated in Article 59 of the 2014 Law on Marriage and Family. According to this principle, when dividing common property which is a house, the provisions must be followed: "Protecting the legitimate rights and interests of the wife, minor children, adult children who have lost their civil act capacity and are unable to work and have no property to support themselves" [42, Clause 5, Article 59]. Thus, the law also has provisions on protecting the rights of the wife when dividing the common property of the husband and wife which is a house. However, the 2014 Law on Marriage and Family only stipulates this in principle, and the specific provisions on how to protect the rights of the wife have not been specifically recorded. The 2014 Law on Marriage and Family also does not specifically record the priority for the wife to receive the property which is a house when dividing the property. From a lifestyle perspective, the home is considered very important in Vietnamese culture. The home can be a place where family memories are attached, can be a familiar living environment, attached to family affection. In many cases, when dividing property, priority should be given to giving the wife the right to receive all or part of the house to ensure the wife's right to have a place to live. This reality stems from the fact that the wife may need a place to take care of her young children, needs to live in a stable environment, familiar with the daily living environment. However, this is a highly practical issue and depends a lot on the reality of the case and the subjective judgment of the judge when judging the division of the wife's property.

husband. However, recognizing that there is priority in ensuring housing for the wife also contributes to protecting the general rights of the wife. If recorded as prescribed above, it will be more practical in ensuring the wife's right to housing after divorce.

In the second case, the division of housing is the husband's separate property .

If the house is the husband's separate property, then when divorcing, it is also necessary to protect the wife's right to residence. The law also has provisions to resolve this case. In this case, the law also stipulates that the wife has the "right to reside" . Because when the law stipulates the wife's "right to reside", it means that the law allows the wife to exercise that right and the husband in this case must have the obligation to comply with the law and respect the wife's right to reside. According to the provisions of Article 63 on the right to reside of the wife or husband upon divorce:

Housing that is privately owned by a husband or wife and has been put into joint use shall remain the private property of that person upon divorce; in case the wife or husband has difficulty in housing, he or she has the right to reside there for a period of 06 months from the date of termination of the marriage, unless the parties have another agreement [42].

With the regulation on the right to residence, the law also contributes to ensuring the right to a place to live for the wife because in many cases, immediately after the divorce, the wife is disappointed and has difficulty stabilizing her life immediately. Previously, the Law on Marriage and Family 2000 did not have regulations on the right to residence. In fact, many couples immediately after the divorce, the wife is often "kicked out of the house immediately", causing the wife to encounter many difficulties in life and daily activities. With the regulation on the right to residence, the Law on Marriage and Family has created a fundamental right for the wife who is not the homeowner of the husband's house. This regulation is also consistent with modern life and contributes to stabilizing the wife's life after the divorce.

Third case, division of housing when the couple's house is the property of another person.

In the case where the couple's house is the property of another person, the 2014 Law on Marriage and Family does not have any guiding documents directly addressing this issue. In principle, when divorcing and dividing property, both husband and wife have property obligations towards the owner of the house. When resolving issues related to property, the principle of protecting the legitimate rights and interests of the wife, minor children, adult children who have lost civil capacity or are unable to work and do not have property to support themselves still applies. However, in practice, there are cases where specific regulations are required, through which the wife's rights are guaranteed. In the case where the couple does not have a house and must rent a house from a third party to live, the issue of settling the residence of the husband and wife after divorce is often based on an agreement between the parties and takes into account the factor of ensuring the rights of the wife and children. However, the Law on Marriage and Family does not specifically regulate this issue because it is related to many agreements between husband and wife and civil agreements between the parties.

In the fourth case, the rental contract is only performed by one spouse.

The protection of the wife's right to housing in the case where the wife is the direct tenant can be negotiated to ensure the wife's right to housing. In the case where the husband is the direct tenant, after the divorce the husband can terminate the rental contract, making the wife not guaranteed the right to housing. In this case, the law on marriage and family has not foreseen it and mainly regulates it through civil law. However, the law on marriage and family needs to regulate these cases in reality, in modern society, there will be families that make long-term rental contracts to live. To ensure the wife's right to housing, the law on marriage and family needs to have more specific and clear regulations.

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