HOW TO DIVIDE THE RIGHT TO USE LAND OF A HUSBAND AND WIFE IN DIVORCE?

Currently, it is common for divorced couples to have disputes over the division of land and houses. So according to the provisions of the current Law on Marriage and Family, how is the division of land use rights, the common property of husband and wife, in divorce carried out?

Table of Contents

1. What is divorce?

2. The law stipulates the division of land use rights of husband and wife in divorce.

2.1 Cases where land use rights are the separate property of husband and wife

2.2 Cases where land use rights are the common property of husband and wife

2.3 Cases where husband and wife live with their family without having the right to use land in common with the household

3. Time of effect of division of common property during marriage

1. What is divorce?

According to Clause 14, Article 3 of the 2014 Law on Marriage and Family, “14. Divorce means termination of the husband and wife relation under a court’s legally effective judgment or decision.”

According to the above provisions, a couple is confirmed to have divorced when they complete the procedures at the Court and receive the legally effective judgment or decision of the Court.

2. The law stipulates the division of land use rights of spouses upon divorce.

2.1 In case the land use right is the separate property of the spouses

Pursuant to Clause 1, Article 62 of the 2014 Law on Marriage and Family, it stipulates: “1. Land use rights being separate property of a spouse remain under his/her ownership upon divorce.”

2.2 In case the land use right is the common property of the spouses

Pursuant to Clause 2, Article 62 of the 2014 Law on Marriage and Family, it stipulates:

“2. The division of land use rights being common property of husband and wife upon divorce shall be divided as follows:

a/ For agricultural land under annual crops or aquaculture, if both partners have the need and conditions to directly use the land, the land use rights shall be divided under their agreement. If they fail to reach agreement thereon, they may request a court to settle it according to Article 59 of this Law.

When only one partner has the need and conditions to directly use the land, that partner may continue to use the land but shall pay to the other the portion of the land use right value the latter is entitled to;

b/ When husband and wife share the right to use agricultural land under annual crops or aquaculture with their household, upon divorce, the couple’s portion of the land use right shall be separated and divided under Point a of this Clause;

c/ For agricultural land under perennial trees, forestry land for forestation or residential land, the land use rights shall be divided according to Article 59 of this Law;

d/ The division of the rights to use land of other categories must comply with the land law.”

2.3 In case the husband and wife live with the family but do not have the right to use the land in common with the household.

According to Clause 3, Article 62 of the 2014 Law on Marriage and Family, it is stipulated that: “3. For husband and wife living with their family and sharing no land use rights with the latter, upon divorce, the interests of the partner who has no land use rights and does not continue to live with the family shall be settled according to Article 61 of this Law.”

Simultaneously, pursuant to Article 61 of the 2014 Law on Marriage and Family, which stipulates the division of property in cases where a husband and wife live with their family:

“Article 61. Division of property for a couple living with their family

1. When a couple living with their family get a divorce, if their property cannot be determined separately from the common property of the family, the husband or wife is entitled to division of part of the family’s common property based on the couple’s contributions to the creation, maintenance and development of the family’s common property as well as to the common life of the family. The couple shall reach agreement with their family on their portion divided from the family’s common property. If they fail to reach agreement thereon, they may request settlement by a court.

2. For a couple living with their family whose property can be determined separately from the family’s common property, upon divorce, such property portion of the couple shall be deducted from the family’s common property for division under Article 59 of this Law.”

3. Effective time of division of common property during marriage

Pursuant to Article 39 of the 2014 Law on Marriage and Family, which stipulates the effective time of division of common property during marriage:

“Article 39. Effective time of common property division during the marriage period

1. The effective time of a common property division shall be agreed by husband and wife and stated in the written agreement. If such time is not stated in the written agreement, it is the date of making the agreement.

2. For divided property whose transactions must be under a certain form as prescribed by law, the common property division takes effect on the time the division agreement complies with the form prescribed by law.

3. For common property divided by a court, the division takes effect on the legally effective date of the court’s judgment or decision.

4. Property rights and obligations between husband and wife and a third party which arise before the effective time of common property division remain legally effective, unless otherwise agreed by involved parties.”