When Marrying a Vietnamese, Can a Foreigner Merge Previously Acquired Separate Property Into Common Property of the Husband and Wife?

In the process of living together, the issue of establishing common property of husband and wife when one party is a foreigner and the other is a Vietnamese is quite common. This is especially true in relation to assets of great value such as land use right or house ownership. However, many people still do not pay attention to this issue.  In the following article, we will introduce relevant legal provisions on this issue. When marrying a Vietnamese, can a foreigner merge previously acquired separate property into common property of the husband and wife? What are the regulations and procedures?

Determine the current state

First of all, it should be noted that:

According to Article 121 of Family and Marriage Law 2014: In their marriage and family relations with Vietnamese citizens, unless otherwise provided by Vietnamese law, foreigners in Vietnam have the same rights and obligations like Vietnamese citizens.

So, the determination of common property of husband and wife in a marriage relationship when either of husband or wife is a foreigner will be basically compliant with Family and Marriage Law. In addition, specific property will be governed by specific laws. For example, land use right and house ownership must comply with land and housing law.

According to regulations, foreigners do not have the right to use land in Vietnam. Foreigners only have the right to own houses to a limited extent provided that specified conditions are met. Therefore, when determining common property of husband and wife in case either of the husband or wife is a foreigner, it should comply Family and Marriage Law and relevant provisions of law.

Legal provisions on property of husband and wife

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.

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.

Is it allowed to merge separate property before the marriage into common property of husband and wife?

Matrimonial property regime in accordance with provisions of law includes 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 procedures for conversion of separate property of husband or wife into common property of husband and wife is as follows:

Step 1: Husband and wife sign a written agreement to convert separate property into common property.

This document is made at a notarial practice organization (notary public office) whose head office is located in the province where the land is located or the People’s Committee of the commune where the land is located.

Documents to be prepared include:

• Certificate of land use right and house ownership.
• Marriage certificate.
• Identification document of husband and wife…

And other documents if requested by the notary public officer or authorized person.

After preparing all of required documents, contact the notarial practice organization or the People’s Committee of the commune where the land is located to notarize and certify the agreement on conversion of separate property into common property of husband and wife.

Step 2: Proceed with registration of change and transfer of title at the competent authority

When a written agreement is signed, the procedures for registration of change and transfer of husband and wife’s title to the common property shall be carried out at the competent State authority.

• Documents for transfer of title in case of converting separate property into common property of husband and wife include:
• The original agreement on conversion of separate property into common property.

Step 3: Handle the documents

Land registration office or its branch is responsible for performing the following tasks:

• Send cadastral information to the tax agency for determination and notification of financial obligations, in case financial obligations must be fulfilled under regulations.
• Certify the change in the granted certificates under regulations of the Ministry of Natural Resources and Environment.
• Adjust and update changes in the cadastral records and land database; hand over the certificates to land users or to commune-level People’s Committees for handover, in case of submission of dossiers at commune level.

Handling period may not exceed 15 days, not including the period for the person with land use right and ownership of properties attached to land to perform his or her financial obligations under regulations.

Step 4: Return the results

The person completing the procedure takes the slip of appointment for receiving the settlement result to the land registration office or its branch for results.

We have provided you with instructions on the procedures for merging separate property into common property upon marrying a foreigner. Please be informed to protect your rights and interests. For more detailed instructions, please contact us: letran@familylawyers.vn