Before marriage, I signed a contract for purchase of an apartment, but its certificate of apartment ownership hasn’t been issued yet for objective reasons related to legal construction procedures made by the investor. Now, I am married. Can I merge this separate property of mine into common property of husband and wife? What are the regulations and procedures? This is a question sent by a foreigner client to us. Let’s find the answer!
Legal provisions on property of husband and wife
According to Article 43 of Family and Marriage Law 2014, it states that separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her; property to meet his/her essential needs and other property under his/her ownership as prescribed by law. Property created from separate property of a husband or wife is also property of his/ her own.
According to Article 33 of Family and Marriage Law 2014, it states that common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property. Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.
Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor. Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.
Family and Marriage Law 2014 states that husband and wife have the right to choose to apply the statutory (i.e. joint or separate) or agreed property regime.
Is it allowed to merge separate property before the marriage into common property of husband and wife after marriage?
Matrimonial property regime in accordance with provisions of law include both separate property and common property. A spouse has the right to reach an agreement on their property. A spouse has the right to merge separate property into common property or reassign common property into separate property.
According to Article 44 of Family and Marriage Law 2014 on possession, use and disposition of separate property, it states that: “A spouse has the right to possess, use and dispose of his/her separate property, and to merge or refuse to merge separate property into common property.”
It is necessary to conduct formalities to merger separate property into common property in accordance with provisions of law. The merger of property must be based upon the spouse’ agreement.
“Article 46. Merger of separate property into common property. Separate property of a spouse shall be merged into common property according to the agreement between the husband and wife. For property merged into common property whose transactions are required by law to be under a certain form, the merger agreement must ensure that form. Unless otherwise agreed by husband and wife or prescribed by law, obligations related to separate property already merged into common property shall be performed with common property.
For property merged into common property whose transactions are required by law to be under a certain form, the merger agreement must ensure that form. Unless otherwise agreed by husband and wife or prescribed by law, obligations related to separate property already merged into common property shall be performed with common property.
So, separate property of husband or wife may be merged into common property of husband and wife if it is agreed upon by both of them. The merger of separate property into common property must be made in written agreement between husband and wife, which is notarized and certified.
Formalities for merging separate property into common property of husband and wife
As per se, the conversion of separate property of husband or wife into common property is a form of giving and transfer of land use right between husband and wife. Pursuant to Clause 3, Article 167 of Land Law 2013, this agreement must be made in writing and notarized or certified.
The steps for conversion of separate property of husband or wife into common property of husband and wife are presented in the article “When marrying a Vietnamese, can a foreigner merge previously acquired separate property into common property of the husband and wife?” please read this again for reference. Here, we only take note of some procedures when the certificate of apartment ownership hasn’t been issued to the property, specifically apartment, yet.
How to register the title of both husband and wife in the certificate of apartment ownership?
In fact, currently, many customers buy apartments but have not received the certificate of ownership. This often occurs in the following two cases and, depending on each case, the procedure for complementing apartment ownership will be different:
Case 1: The investor has not yet made an application for ownership
In this case, it is relatively simple because legal documents of the apartment have not been completed at the competent authority for issuance of the certificate of apartment ownership. The buyer only needs to contact the investor for agreement and proposal to change the signed apartment purchase and sale contract. Both parties will cancel the apartment sale and purchase contract signed in the name of one spouse to re-sign a new contract in the name of both husband and wife. The execution and cancellation of this contract will have to be performed at the notary office where the previous contract was signed.
Attached documents include:
- Signed apartment sales and purchase contract
- Marriage certificate.
- Written agreement for husband and wife to register their names in the apartment sales and purchase contract
- Identification document of husband and wife…
After re-signing the apartment sales and purchase contract, the investor will modify legal documents of the apartment.
When the Investor carries out procedures to apply for a certificate of apartment ownership, the certificate will automatically be in the names of both husband and wife.
Case 2: The apartment is in the process of applying for red book
In this case, the application for red book has been submitted and is being considered by the competent authority for issuance of a certificate of apartment ownership. The name of a person on the red book cannot be changed. It is necessary to wait until the certificate of apartment ownership is issued before making an agreement to merge separate property into common property of husband and wife.
This will also apply to cases where it is not possible to agree with the investor on the cancellation and renewal of a new contract in the names of both husband and wife.
Following steps should be performed:
- After being issued the certificate of apartment ownership, the owner brings the certificate together with the marriage certificate, investor’s written confirmation, the apartment purchase and sale contract, to the notary office to sign the agreement for conversion of separate property into common property.
- Then, take the red book together with notarized written agreement to the competent authority to apply for procedure to change and update changes on the certificate of apartment ownership.
We have provided you with instructions on merging separate property with insufficient legal basis into common property of husband and wife. For more detailed instructions, please contact us: letran@familylawyers.vn
