Tiếng Việt
Table of Contents
1. What are common property and separate property?
2. Principles for resolving property between spouses upon divorce
3. Do passbook has to be divided in half after a divorce?
1. What are common property and separate property?
According to Article 33 of the 2014 Law on Marriage and Family, the common property of spouses is stipulated as follows:
“Article 33. Common property of husband and wife
1. 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; except the case prescribed in Clause 1, Article 40 of this Law; 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.
2. 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.
3. 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.”
According to Article 43 of the 2014 Law on Marriage and Family, the separate property of the husband and wife is stipulated as follows:
“Article 43. Separate property of husband and wife
1. 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 under Articles 38, 39 and 40 of this Law; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.
2. Property created from separate property of a husband or wife is also property of his/her own. Yields and profits arising from separate property during the marriage period must comply with Clause 1, Article 33, and Clause 1, Article 40, of this Law.”
2. Principles for settling property of spouses upon divorce
According to Article 59 of the 2014 Law on Marriage and Family, the principles for settling property of spouses upon divorce are stipulated as follows:
“Article 59. Principles of settlement of property of husband and wife upon divorce
1. 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 Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
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 must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
2. Common property shall be divided into two, taking into account the following factors:
a/ Circumstances of the family, husband and wife;
b/ 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;
c/ 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;
d/ Each spouse’s faults in the infringement of spousal rights and obligations.
3. 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.
4. Separate property of a spouse shall be under his/her ownership, except for separate property already merged into common property in accordance with this Law.
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 property contributed to common property, unless otherwise agreed by husband and wife.
5. The lawful rights and interests of the wife, minor children or adult children who have lost their civil act capacity or have no working capacity and no property to support themselves shall be protected.
6. The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding this Article.”
3. Does the savings book has to be divided in half after a divorce?
According to Clause 1, Article 33 of the 2014 Law on Marriage and Family, “1. 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; except the case prescribed in Clause 1, Article 40 of this Law; 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.”
The assets that the husband and wife inherit together or are given together and other assets that the husband and wife agree are common property.
Therefore, if they divorce, according to the law, in principle, passbook assets will be divided in half.
In addition, Article 43 of the 2014 Law on Marriage and Family stipulates that passbook will be separate property if the husband or wife can prove that the entire amount in the passbook is their own, formed from sources such as separate inheritance, separate gifts or separate division during the marriage and there is no agreement to include that amount in the common property, then it will not be divided when the divorce is resolved
Thus, passbook opened during the marriage will be divided equally. Both husband and wife benefit from dividing this savings book. On the contrary, if passbook belongs to the husband or wife alone, if it can be proven that it is separate property, this property will not be divided upon divorce.