The division of the joint property of husband and wife upon divorce is a common problem that couples meet after divorce. These disputes when arising are often very complicated and prolonged because the practice of resolving disputes about joint property division is associated with many different situations with different types of assets.

FIRSTLY, THE PRINCIPLE OF SETTLING PROPERTY OF HUSBAND AND WIFE:

1. Rules for settling a joint property dispute upon divorce in cases the property regime is an agreement

An agreed property regime (also called an assessed property regime) is a set of rules est

ablished by the couple themselves based on legal permission to replace property regime for regulating the property relationship of husband and wife. Property regime of husband and wife under agreement shall comply with the provisions of Articles 47, 48, 49, 50 and 59 of Law on Marriage and Family.

The husband and wife have the right to choose to apply the property regime according to law or the property regime according to the agreement.

[1].This agreement must be made before marriage, in the form of notarized or authenticated documents. The property regime of husband and wife takes effect from the time of marriage registration

[2].Therefore, upon divorce, if there is a request for division of joint property, the Court shall consider, if there is a written agreement on the property regime of the couple and this document is not completely invalidated by the Court then the Court could apply the contents of the agreement to divide the couple property 

upon divorce. For matters that are not agreed upon by the couple or the agreement is unclear or invalid, the provisions of the law apply, the effective agreements are still respected and implemented.

2. Rules for settling a husband and wife property dispute when divorced in case the property regime is statutory

The statutory property regime of husband and wife shall comply with the provisions of Articles 33 to 46 and Article 59 to Article 64 of the Law on Marriage and Family

• Joint property of husband and wife is divided in half but takes into account:

+ The situation of the family and of the couple;

+ Contribution of husband and wife to the creation, maintenance, and development

 of joint property. Labor of wife and husband in the family is regarded as a labor with income;

+ Protecting the legitimate interests of each party in production, business and occupation so that the parties can continue working for income generation;

+ The fault of each party violates the rights and obligations of husband and wife.

• Joint property of husband and wife is divided in kind, if not in kind divided by value. The party who receives the property in kind with a value greater than his / her enjoyment shall pay to the other party the difference.
• Protect the legitimate rights and interests of wives, infants, teenagers who have lost their civil act capacity or have no working capacity and no property to support themselves.
• The personal property of a spouse is owned by that person, unless the separate property has been merged into the common property according to the general provisions.
• In case there is no ground to prove that the property in dispute by both husband and wife is the separate property of each party, such property shall be regarded as joint property.

SECONDLY, SETTLING PROPERTY OF HUSBAND AND WIFE IN SOME CASES:

1. Division of property in case the couple lives with their family

• In case a hu
• sband and wife live with their family and divorce, if the couple property in the joint property of the family is unidentifiable, then the couple will be divided a part of the joint property of the wife/husband family relying on the efforts of husband and wife in the creation, maintenance and development of joint property as well as the common life of the family. The partial division of joint property is agreed upon by the husband and family. If no agreement is reached, the couple will issue the Court for settlement.
• In case the husband and wife live together with the wife/husband family, the property of the couple in the joint property of the wife/husband family can be determined according to the section, then upon divorce, the couple properties shall be deducted from the family property. General to divide it according to regulations.

2. Divide the land use right of husband and wife upon divorce

Upon divorce, the division of land use rights being the joint property of husband and wife is done as follows:

• For agricultural land for annual crops or aquaculture: If both parties have demands and conditions for direct use of land, they shall be divided according to the agreement of the husband and wife. If no agreement can be reached, the Court shall apply the principles of division of husband and wife property upon divorce for settlement. In cases where only one party has the need and conditions to continue using the land, such party may continue using such land but must pay the other party the value of the land use rights they enjoy. In case the husband and wife have the land use right with the household, when the divorce is part of the husband land use right is separated and divided.
• For agricultural land for planting perennial trees and forestry land for afforestation and residential land: The settlement of land use rights for this type of land upon divorce and husband and wife shall apply the principles of common property division according to regulations in Article 59 of the Law on Marriage and Family 2014. For other types of land, it is divided according to the land law.

3. Dividing the joint property of husband and wife put into business

When divorced, a spouse who is conducting business activities related to joint property of husband and wife is entitled to receive such property and must pay to the other party the value of the property he/she is entitled to, except for cases where other laws on business (Article 64 of Law on Marriage and Family 2014).

The process of asset division will be more complicated and time-consuming if the couple owns many different types of assets. It is advisable that the client engage a professional law firm in Vietnam to assist with the advisory and investment registration process. With the board experienced of divorce Law in Vietnam, Apolo Lawyers we believe to provide our client with a smooth process in the shortest time.

More information can be found on the website: www.apolo.com.vn.