Division of Common Property of Husband and Wife During Marriage

For many reasons such as: Disagreement in the management and use of common property, emotional conflicts, wanting to be financially independent, etc., many couples have chosen to divide their common property during marriage.

Is this division legally recognized? Can property be divided during marriage? Which agency has the right to approve this division? Here are our answers to your questions!

Dividing common property in the current marriage is no longer a new issue for couples who are having problems in their marriage or who simply want to separate their property.

It is the husband and wife’s agreed written request to the Court to settle the division of existing and future common property during the marriage, this is to help split the common property between them to become their individual property even while the marital relationship still exists.

The division of common property of husband and wife is based on the conditions and principles specified in the Law on Marriage and Family 2014 and Decree 126/2014/ND-CP in order to protect the lawful rights and interests of husband and wife in relation to property.

Laws on common property of husband and wife during marriage

Article 33 of the Law on Marriage and Family 2014, stipulates that:

Common property of husband and wife includes property created by husband and wife’s income from labor, production and business activities, yields, profits arising from separate property and other lawful incomes during marriage, unless there is a valid pre-nuptial agreement in place that states otherwise.

Property that husband and wife inherit jointly or are given as a gift during marriage and other property agreed upon by husband and wife is common property.

Land use rights acquired by husband and wife after marriage are the common property, except for cases where the spouses are separately inherited, given separately or acquired through transactions with separate property.

The husband and wife’s common property is under common ownership and is used to meet the family’s needs and fulfill the husband and wife’s common obligations. In case there are no grounds to prove that the property in dispute between husband and wife is the separate property of each party, such property shall be considered as common property.

Laws on division of common property during marriage

The division of common property during the marriage period is specified in Article 38 of the Law on Marriage and Family 2014 as follows:

During the marriage, husband and wife have the right to agree to divide part or all of the common property. Agreement on division of common property must be made in writing. This document is notarized at the request of the husband and wife or as prescribed by law.

If the husband and wife cannot reach an agreement, they have the right to request the Court to settle the division of common property according to regulations.

Effective date of division of common property

Article 39 of the Law on Marriage and Family 2014 defines:

• The effective time of division of common property of husband and wife is the time agreed upon by husband and wife and recorded in writing. If the document does not specify the effective time, the effective time is counted from the date of making the document.
• In case the property is divided but according to the provisions of law, the transaction related to that property must follow a certain form, the division of common property of husband and wife takes effect from the time the agreement is complied with the relevant law.
• In case the Court divides the common property of husband and wife, the division of common property takes effect from the date the Court’s judgment or decision is concluded.
• Property rights and obligations between husband and wife and a third party arising before the effective time of division of common property are still valid, unless otherwise agreed by the parties.

Can the division of common property be terminated during marriage?

Article 41 of the Law on Marriage and Family 2014 provides for the termination of the validity of the division of common property during the marriage period as follows:

• After dividing common property during marriage, husband and wife have the right to agree to terminate the effect of division of common property. The form of the agreement must also be in writing. This document is notarized at the request of the husband and wife or as prescribed by law.
• From the effective date of the termination agreement of husband and wife, the determination of common property and separate property of husband and wife shall comply with the provisions on Common property (Article 33) and Separate property (Article 43) of the Law on Marriage and Family 2014. The part of property that has been divided between husband and wife is still under their separate ownership, unless otherwise agreed upon by the husband and wife.
• Property rights and obligations arising before the effective time of division of common property are still valid, unless otherwise agreed by the parties.
• In case the division of common property during the marriage is done according to an effective court judgment or decision, the agreement to terminate the effect of the division of common property must be decided by the Court.

Cases of division of common property during the marriage period are invalid

The division of common property during the marriage period is invalid in one of the cases specified in Article 42 of the Law on Marriage and Family 2014:

• Serious harm to the family’s interests; legitimate rights and interests of minor children, adult children who have lost their civil act capacity or are unable to work and have no property to support themselves.
• In order to avoid performing the following obligations: The obligation to nurture and support; Obligation to compensate for damage; Obligation to pay when the Court declares bankruptcy; Obligations to pay debts to individuals and organizations; The obligation to pay taxes or other financial obligations to the State; Other property-related obligations as prescribed by this Law, the Civil Code and other relevant laws.

Thus, husband and wife can completely divide the common property during the marriage. However, it is necessary to pay attention to the provisions of the law on this issue, and at the same time make the property division clearly and seriously to avoid unnecessary disputes later.

If you have any questions, please contact us for more details: letran@familylawyers.vn