Common Property & Separated Property of Spouses

Questions about Common Property of spouses in a Matrimonial Property Regime:

1. What is common property of spouses?

• Common property of spouses shall be under integrated common ownership which includes:
  (a) 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; except the division of common property;
  (b) Property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property, and
  (c) The land use rights obtained by a spouse after marriage, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.

2. How to register for the ownership and use rights of common property?

• For a common property which is required by law to be registered for ownership or use, both spouses shall be named in the ownership or use right certificate, unless otherwise agreed by the couple.
• In case only one spouse is named in the property ownership or use right certificate, transactions related to such property must comply with the provisions of representation between husband and wife. Any dispute related to that property shall be settled under the provisions of common property.

3. How is common property possessed, used and disposed?

• The possession, use and disposition of common property shall be agreed by husband and wife which includes the following:
  (a) Real estate;
  (b) Movable assets which are required by law to be registered for ownership;
  (c) Assets which are the major income-generating source for the family.

4. Could common property be used for business activities?

• Yes, if there has a written agreement on either spouse’s use of common property for business activities, this spouse has the right to make transactions related to that common property on his/her own.

5. In which circumstances do husband and wife have joint property obligations?

• Husband and wife have the following common property obligations:
  (a) Obligations arising from transactions established under their agreement;
  (b) Obligations to pay damages under their joint liability as prescribed by law; – Obligations performed by a spouse in order to meet the family’s essential needs;
  (c) Obligations arising from the possession, use and disposition of common property;
  (d) Obligations arising from the use of separate property for maintaining and developing common property or for generating major incomes for the family;
  (e) Obligations to pay damages caused by their children as prescribed by the Civil Code;
  (f) Other obligations as prescribed by relevant laws.

6. Whether husband and wife can divide the common property during their marriage or not?

• Yes. During the marriage, husband and wife have the right to reach agreement on division of part or whole of common property. If they fail to reach such agreement, they have the right to request a Court to resolve.

7. In which circumstances that the agreement on division of common property in marriage period is invoid?

• Such agreement fall into one of the following cases shall be invoid:
  (a) It seriously harms the family’s interests; or lawful rights and interests of minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves;
  (b) It aims to shirk the following obligations:
  – Raising and support obligations;
  – Damages payment obligations;
  – Payment obligations when declared bankrupt by a court;
  – Debt payment obligations;
  – Tax payment obligations or other financial obligations toward the State;
  – Other property obligations as prescribed by this Law, the Civil Code and other relevant laws.

8. When does the division of common property in marriage period come into effect?

• The effective time of division of common property of husband and wife is:
  (a) The time be agreed by husband and wife and stated in the written agreement. If such time is not stated in the written agreement, it is the date of making the agreement; or
  (b) The time the division agreement complies with the form prescribed by law; or
  (c) The legally effective date of the Court’s judgment or decision.

9. What are legal consequences of common property division in the marriage period?

• Divided property and yields or profits arising from separate property of each spouse after common property division are separate property of each spouse, unless otherwise agreed by husband and wife;
• The undivided property portion remains common property of husband and wife;
• Rights and obligations on such property previously established between husband and wife and a third party shall remain unchanged.

10. When will the division of common property in marriage period be terminated?

• The husband and wife have reached an agreement on the termination of the effect of the division of common property in a notarized document; or
• The agreement on termination of the effect of common property division shall be recognized by the court.

Questions about Separated Property of spouses in a Matrimonial Property Regime:

11. What are the regulations on the separated property?

• Seperated property of husband and wife includes:
  (a) Property owned by a spouse before the marriage;
  (b) Property inherited by or given separately to him/her during the marriage period;
  (c) Property divided to a spouse under the agreement on common property of husband and wife;
  (d) Property to meet a spouse’s essential needs;
  (e) Property rights to intellectual property objects in accordance with the law on intellectual property;
  (f) Property that the husband and wife establish a separate ownership according to a judgment or decision of a Court or other competent authority;
  (g) Allowances and incentives received by a spouse to the provisions of the law on incentives for people with meritorious services to the revolution; other property rights attached to the identity of the husband and wife.

12. What are regulations on possession, disposition and use of the separated property of husband and wife?

• A spouse has the right to merge or refuse to merge separated property into common property;
  (a) If a spouse cannot manage his/her separate property himself/herself and does not authorize another person to manage it, the other spouse has the right to manage such property. The property management must ensure benefits for the property owner;
  (b) Each spouse’s separated property obligations shall be performed with his/her separated property;
  (c) If yields or profits from separate property of a spouse constitute the family’s sole livelihood, the disposition of such property is subject to the other spouse’s consent.

13. Whether separate property of husband and wife could become their common property or not?

• Yes. Separate property of a spouse shall be merged into common property according to the agreement between the husband and wife. Obligations related to separate property already merged into common property shall be performed with common property.

Conclusion

While many couples can settle the questions of assets and debt distribution outside the courtroom, this written agreement still must comply with regulation of law and is not allowed to violate rights of other party or any other individual, organization.

Furthermore, when divorcing spouses fail to reach an agreement it is important to consult with family attorneys if the divorce would lead to potential disputes.