DIVISION OF COMMON PROPERTY OF THE SPOUSES DURING DIVORCE
The process of dividing common property between husband and wife after divorce is a complex procedure that requires the parties to adhere to legal provisions. Understanding and applying the law on marriage and family concerning the joint property regime of spouses, as well as the principles of dividing common property after divorce, play a crucial role in resolving disputes between spouses regarding property matters. This ensures the legal rights and interests of the parties in their post-marital relationship. In this article, TNTP will analyze and clarify the aforementioned issues.
1. Common property during marriage
Pursuant to Article 33 of the Law on Marriage and Family 2014, the common property between husband and wife is defined. Accordingly, the 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.
However, not all property formed or created during marriage is considered the common property of husband and wife, the following properties arise during the marriage but are not considered the common property of husband and wife:
– When the common property of husband and wife is divided, unless otherwise agreed by husband and wife, divided property and yields or profits arising from separate property of each spouse after common property division are separate property of each spouse (Article 40.1 of Law on Marriage and Family 2014);
– When the property is separately inherited by, or given to a spouse or is obtained through transactions made with separate property (Article 33.1 of Law on Marriage and Family 2014)
2. Principles for dividing the common property of husband and wife upon divorce
Pursuant to Article 59 of Law on Marriage and Family 2014 and Article 7 Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP, when divorcing, husbands and wives have the right to reach an agreement on all issues, including property division. Accordingly, in case the parties have agreed with each other on the division of common property after divorce and have a written agreement on the property regime of husband and wife, and this written agreement is not declared null and void by the court, the parties will apply the contents of the written agreement to divide the couple’s property upon divorce. For issues not agreed upon by the husband and wife or if the agreement is unclear or invalid, Clauses 2, 3, 4, and 5 of Article 59, as well as Articles 60, 61, 62, 63, and 64 of the Marriage and Family Law of 2014, shall be applied to resolve the matter.
In the event that there is no written agreement on the property regime of the husband and wife, or if the written agreement on the property regime of the husband and wife is declared completely invalid by the court, the property regime of the husband and wife shall be governed by the laws that stipulate the division of property between husband and wife upon divorce.
The division of common property after divorce is carried out according to (i) the principle of dividing it equally, (ii) the principle of dividing common property in kind, and (iii) the principle of allocating personal property to each respective individual. Specifically:
Pursuant to Clause 2, Article 59 of Law on Marriage and Family 2014, the common property of husband and wife after divorce will be determined according to the principle of division in half, while taking into account the following factors:
– Circumstances of the family and of the spouses: is the status of legal capacity, behavioral capacity, health, property, ability to work and generate income after divorce of the spouses as well as of other family members and the spouses have personal and property rights and obligations according to the provisions of the Law on Marriage and Family. The party facing more difficulties after divorce is given a larger share of property than the other party or is given priority in receiving property to ensure the maintenance and stability of their lives but must be consistent with the actual circumstances of the parties’s family and the spouses.
– The contribution of husband and wife to the creation, maintenance, and development of common property: is the contribution of separate property, income, household work, and labor of husband and wife in creating, establishing, maintaining, and developing the common property. The spouse who stays at home to take care of the children and family without working is counted as a worker with income equivalent to the income of the working husband or wife. The party that contributes more will receive more.
– Protect the legitimate interests of each party in production, business and occupation so that the parties can continue to work and generate income: the division of common property between husband and wife must ensure that the spouse’s professional activities can continue to be practiced; for husband and wife who are engaged in production and business activities to continue production and business to generate income and must pay the other party the difference in property value. The protection of the legitimate interests of each party in production, business and professional activities must not affect the minimum living conditions of spouses, minor children or adult children who have lost legal civil capacity.
– Each party’s fault in violating the rights and obligations of the spouses: is the fault of the spouse in violating the personal and property rights and obligations of the spouses, leading to divorce.
According to Clause 3, Article 59 of the Law on Marriage and Family 2014, in the case of dividing the common property of husband and wife in kind, the law prioritizes dividing the property in kind first. If it cannot be divided in kind, then it should be divided based on value. Whichever party receives property in kind with a value greater than the portion they are entitled to must pay the difference to the other party.
In addition, according to Clause 4, Article 59 of the Law on Marriage and Family 2014, in cases where the separate property of the couple has been merged into common property according to the provisions of the law, if there is a merger or mixing of separate property, and if the husband and wife request to divide the common property, they will be paid the value of their property contributed to that common property unless the husband and wife have agreed otherwise.
Above are TNTP’s legal sharing on the principles of dividing common property between husband and wife upon divorce. Hope this article is useful to you.
TNTP & Associates International Law Firm