IS IT POSSIBLE TO TRANSFER LAND USE RIGHTS WITHOUT THE SIGNATURE OF THE WIFE?

TABLE OF CONTENTS

1. Separate property and common property of husband and wife according to the law

2. Is the land use right certificate required to have the names of both husband and wife?

3. Is it possible to transfer land use rights without the wife’s signature?

1. Separate property and common property of husband and wife according to the law

According to Clause 1, Article 43 of the 2014 Law on Marriage and Family, the provisions on separate property of husband and wife are as follows: “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.”

According to Clause 1, Article 33 of the 2014 Law on Marriage and Family, the provisions on the common property of the husband and wife are as follows: “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 acquired by the husband and wife after marriage are the common property of the husband and wife, except in cases where the husband or wife inherits them separately, is given them separately, or is acquired through transactions using separate property.”

2. Is it mandatory for the land use right certificate to have the names of both husband and wife?

According to Article 34 of the 2014 Law on Marriage and Family:

“Article 34. Registration of ownership and use rights for common property

1. For a common property which is required by law to be registered for ownership or use, both spouses shall be named in the ownership or use right certificate, unless otherwise agreed by the couple.

2. In case only one spouse is named in the property ownership or use right certificate, transactions related to such property must comply with Article 26 of this Law. Any dispute related to that property shall be settled under Clause 3, Article 33 of this Law.”

According to Clause 4, Article 98 of the 2013 Land Law, “In case land use rights, or land use rights and the ownership of houses and other land- attached assets, or the ownership of houses and other land-attached assets are/is the joint property of husband and wife, the full names of both husband and wife must be recorded in the certificate of land use rights and ownership of houses and other land-attached assets, unless husband and wife agree to record the full name of only one person.

In case land use rights, or land use rights and the ownership of houses and other land-attached assets, or the ownership of houses and other land-attached assets are/is the joint property of husband and wife and the granted certificate only records the full name of the husband or wife, a new certificate which records the full names of both husband and wife may be granted if requested.”

 So, based on legal regulations, if the husband and wife do not have an agreement that the land use right certificate is under the name of one person, the land use right certificate must record the names of both the husband and wife when the house and land are the common property of the husband and wife.

When the land use right certificate only has the name of one husband or wife, according to Point b, Clause 3, Resolution 02/2000/NQ-HDTP, in the case of property acquired by the husband or wife during the marriage that the law requires to be registered for ownership, but the certificate of ownership only records the name of the husband or wife, it is determined as follows:

• If there is no dispute, it is the common property of the husband and wife;

• If there is a dispute over separate property, the person whose name is on the certificate of ownership must prove that this property was inherited separately, given separately during the marriage or that this property was obtained from a separate property source as prescribed in Clause 1, Article 43 of the Law on Marriage and Family 2014. In case it cannot be proven that the disputed property is separate property, according to the provisions of Clause 1, Article 33 of this Law, the property is the common property of the husband and wife.

3. Is it possible to transfer land use rights without the wife’s signature?

According to Clause 2, Article 33 of the 2014 Law on Marriage and Family, “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.”

Based on the above provisions, if a husband and wife transfer land use rights and the land use rights certificate is in the name of both husband and wife, the procedure must have the consent of both. Or when signing the transfer contract, there must be full signatures of both husband and wife, except in cases of authorization.

According to the provisions of law, for common property of husband and wife, for activities related to the possession and use of property, the husband and wife will agree with each other; and the decision on legal activities regarding the property must have the consent of both husband and wife. Therefore, in this case, when buying and selling land, the signatures of both husband and wife are required. Without the wife’s signature, the transaction will not be carried out.

According to Clause 1, Article 44 of the 2014 Law on Marriage and Family, it is stipulated that: “1. A spouse has the right to possess, use and dispose of his/her separate property, and to merge or refuse to merge separate property into common property.”

Based on the above provisions, if the husband and wife transfer the right to use land that is their own property, then when selling, the signatures of both are not required. Thus, the husband has full authority to decide on the disposal of the right to use land. That is, the husband has the right to transfer the right to use land under his own use. When buying and selling this land, the husband has the right to carry out the transaction, including signing the contract (without the signature of the wife).