DIVIDING PROPERTY UPON DIVORCE
- Common property of husband and wife
According to Law on Marriage and Family 2014:
- 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;
Other lawful incomes of husband and wife in the marriage period
+ Bonuses, lottery prizes and allowances, except the case prescribed in Clause 3, Article 11 of Decree No. 126/2014 ND/CP
+ Property a spouse has the right to establish ownership in accordance with the Civil Code for objects which are ownerless, buried, hidden, sunk, dropped on the ground or left over out of inadvertence, stray cattle or poultry and raised aquatic animals.
+ Other lawful incomes as prescribed by law
Yields and profits from separate property of husband and wife
+ Yields from separate property of a spouse means natural produces he/she gains from his/her separate property.
+ Profits from separate property of a spouse means the profits he/she earns from the exploitation of his/her separate property
- Property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property
- The land use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property
- When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property
- Principles of settlement of property of husband and wife upon divorce
– In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement. In case the agreement is insufficient or unclear
– The settlement of property shall be agreed upon by the concerned parties in case of applying the statutory matrimonial property regime. If they fail to reach agreement thereon, at the request of a spouse or both, a court shall settle it according to law
Common property shall be divided into two, taking into account the following factors:
- Circumstances of the family, husband and wife;
- Each spouse’s contributions to the creation, maintenance and development of common property. The housework done in the family by a spouse shall be regarded as income-generating labor;
- Protecting the legitimate interests of each spouse in their production, business and career activities to create conditions for them to continue working to generate incomes;
- Each spouse’s faults in the infringement of spousal rights and obligations
– Common property of husband and wife shall be divided in kind, if impossible to be divided in kind, common property shall be divided based on its value. The partner who receives the property in kind with a value bigger than the portion he/she is entitled to receive shall pay the value difference to the other.
– A spouse who requests division of separate property which has been merged into or mixed with common property shall be paid for the value of his/her www.LuatVietnam.vn Vietnam Law & Legal Forum 20 property contributed to common property, unless otherwise agreed by husband and wife
- Some notes when dividing property upon divorce
- The property between husband and wife is resolved in a unilateral divorce case with property dispute or can be agreed to separate settlement after the divorce with the case of division of property after divorce.
- Any party that requests the Court to determine the property is private property is obliged to prove it, if it cannot be proved, it is determined to be a common property.
If there are grounds to determine that a party has merged private property into the common property, it will be determined as property of husband and wife
Please contact us for detailed advice.
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