How does the law regulate the division of land use rights of the husband and wife upon divorce?

According to the 2014 Law on Marriage and Family and guiding documents, land use rights acquired during the marriage period is common property when:

  • The land is allocated by the State with or without land use levy to the husband and wife;
  • The land is leased from the State (the rental payment is paid with common property);
  • Acquiring the land use rights (the payment is made with common property);
  • The land is jointly inherited or given as a gift;
  • The land use right is a spouse’s separate property but the spouses agree to merge it into common property;
  • The land use right is obtained by the yields and interests arising from the separate property of the husband and wife;
  • If there is no evidence to prove that it is separate property, the land use right will be considered common property.

Upon divorce, the law allows the husband and wife to agree on the division of the property. If there is no agreement, then it is divided at the request of each or both parties. Accordingly, common property shall be divided in half, taking into account the following factors:

  • Circumstances of the family and of the husband and wife. The spouse facing greater financial difficulties after the divorce is entitled to a larger share of the property than the other spouse or is given priority to receive the type of property which will ensure the maintenance and stability of life;
  • Each spouse’s contribution to the creation, maintenance and development of the common property. The housework done in the family by a spouse shall be regarded as income-generating labor equivalent to the working spouse;
  • Protection of the legitimate interests of each spouse in their production, business and career activities to create conditions to continue working to generate income.

*For agricultural land growing annual crops, land for aquaculture, and land for salt production:

If both husband and wife have the need to use the land and have the conditions to directly use it, the land use rights shall be divided under their agreement. If they fail to reach agreement, they may request the Court to resolve the matter.

If only one of the spouses directly needs and has the conditions to directly use it, it will be divided under their agreement. If they fail to reach an agreement, they may request the Court to resolve the matter.

If only one of the spouses has the need and conditions to directly use the land, the requesting party may continue to use the entire land after reaching an agreement with the other. If they fail to reach an agreement, the requesting part will pay to the other party the value of the land use right that they are entitled to at the rate agreed upon by the parties. If they fail to reach an agreement, the parties may request the Court to resolve the matter. Should the one spouse have the need and conditions to use the land, but is unable to pay the other, that party has the right to transfer the land use right to another person.

* Land for perennial crops, forestry land, residential land, and special-use land which are the common property of the husband and wife shall be divided according to the principles of property division upon divorce.

* For land that is leased by the State:

Should the husband and wife have paid the annual rental payment, upon divorce, if both parties have the need and conditions to directly use the land, they shall divide it under the principles of property division upon divorce. The parties must also re-sign the land lease contract with the competent authority.

If the husband and wife have paid the annual rental payment and upon divorce only one party has the need and conditions to directly use the land, that party may continue to use the land and re-sign the contract with the competent authority.  If the party that does not continue to use the land has invested assets in the land, the party continuing to use the land must pay to the other party part of the value of the assets invested in that land at the time of divorce, based on the amount of invested assets and contribution of the other party.

If the husband and wife have paid the annual rental payment for the entire lease period, upon divorce, the parties shall agree on the use of that land and pay each other the part of the paid rental payment for the remaining land lease term. The person who continues to use the entire leased area is responsible for paying the other party ½ of the land rental amount corresponding to the remaining land lease term. If the parties have invested assets in the land, the person who continues to use the land must pay the other party part of the value of the assets invested in the land at the time of divorce, based on the amount of invested assets and contribution of the other party.

*For land that the husband and wife can convert, transfer, jointly inherit, and receive with mortgage:

The land use rights are the common property of the husband and wife and are divided under the principles of property division upon divorce.

Division of the land use rights of the husband and wife allocated together with the household: the portion of the land use rights of the husband, wife and children who do not continue to live together with the family shall be separated and divided under their agreement or they may request a court to resolve the matter.

No response