Vietnam is in the process of integration and development, leading to economic growth as commercial and service activities as well as marriage and family life are also becoming more and more diversified. For example, marriage, divorce, separate property before marriage, etc. So “Mortgage of common property of husband and wife in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Civil Code 2015
- Law on Marriage and Family 2014
How is mortgaged property regulated by law?
Pursuant to Article 318 of the 2015 Civil Code stipulates:
1. Where an entire immoveable property or moveable property having auxiliary objects is mortgaged, such auxiliary objects shall also form part of the mortgaged property, unless otherwise agreed.
2. Where a portion of an immoveable property or moveable property having auxiliary objects is mortgaged, such auxiliary objects shall also form part of the mortgaged property, unless otherwise agreed.
3. Where a land use right of land having assets attached to the land under the ownership right of the mortgagor is mortgaged, such assets shall also form part of the mortgaged property, unless otherwise agreed.
4. Where a mortgaged property is insured, the mortgagee must notify the insurer that the insured property is being mortgaged. The insurer shall pay the insured sum directly to the mortgagee upon occurrence of an insured event.
If the mortgagee fails to notify the insurer that the insured property is being mortgaged, the insurer shall pay the insured sum in accordance with the insurance contract and the mortgagor shall be obliged to make payment to the mortgagee.
Mortgage of common property of husband and wife in Vietnam
According to Article 35 of the Law on Marriage and Family 2014 on possession, use and disposition of common property as follows:
1. The possession, use and disposition of common property shall be agreed by husband and wife. 2. The disposition of the following common property shall be agreed in writing by husband and wife:
a/ Real estate;
b/ Movable assets which are required by law to be registered for ownership;
c/ Assets which are the major income-generating source for the family.
According to the above provisions, the mortgage of common property of husband and wife shall be agreed upon by husband and wife. In case of mortgage of real estate, movable property that is required to be registered for ownership, or the property is the main source of income for the family, there must be a written agreement between the husband and wife.
Subject of the contract of mortgaged property
The mortgagor is the party that uses property under its ownership to mortgage, with its property, to secure the performance of obligations agreed upon with the mortgagor.
The mortgagee is the party with the right to the mortgage relationship.
Validity of the mortgaged property contract:
According to the provisions of the Civil Code 2015 on the effective time of a mortgaged property contract, this contract takes effect from the time of signing, unless otherwise agreed by the parties or provided for by law. Regarding the countervailing effect against the third party, the time when the antagonistic effect arises against the third party in mortgaged property contract is from the time of registration.
Objects of mortgaged property
The range of properties used as collateral is broader than that of mortgaged property.
Collateral can be objects, property rights, valuable papers, existing or future assets, leased or lent.
But the collateral must be property owned by the mortgagor.
In a mortgage relationship, the parties can agree to mortgage part or all of the real estate.
When the mortgagor uses the entire immovable property to secure an obligation, the ancillary items of the immovable property are also included in the mortgaged property.
In case of mortgage of movable or movable property with auxiliary objects, the auxiliary objects shall also be included in the mortgaged property, unless otherwise agreed by the parties.
Is the mortgaged contract as common property of husband and wife obligatory for both spouses to sign?
Pursuant to Clause 2, Article 24 of the Law on Marriage and Family 2014:
Article 24. Bases for determination of representation between husband and wife
1. The representation between husband and wife in establishing, making and terminating transactions shall be determined in accordance with this Law, the Civil Code and other relevant laws.
2. Husband and wife may authorize each other to establish, make or terminate transactions which, as prescribed by this Law, the Civil Code and other relevant laws, shall be agreed upon by both spouses.
3. A spouse may represent the other when the latter loses his/her civil act capacity while the former is eligible to act as the guardian or when the latter has his/her civil act capacity restricted while the former is designated by a 15 court to act as the at-law representative of his/her spouse, unless the latter is required by law to perform by himself/herself related rights and obligations. When a spouse loses his/her civil act capacity and the other requests a court to settle divorce, the court shall designate another person to represent the partner who has lost his/her civil act capacity for settlement of divorce in accordance with the Civil Code’s provisions on guardianship.
Usually, when signing a mortgage contract, the mortgaged property is the common property of husband and wife. The mortgage agreement must be signed by both spouses. However, the law allows husband and wife to authorize each other to perform transactions in accordance with the law.
Therefore, if only the wife signs the mortgage contract with the bank, the wife must have a written authorization from the husband about the consent of both parties for the representative to sign the mortgage contract.
Thus, if the wife has the husband’s authorization, the mortgage contract signed by the wife with the bank is completely legally valid.
Joint property of husband and wife in accordance with the law
According to Article 33 of the Law on Marriage and Family 2014:
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.
Article 355 of the Civil Code stipulates: In cases where the performance of a civil obligation is due but the obligor fails to perform or performs improperly, the mortgaged property shall be handled in accordance with regulations. in Articles 336 and 338 of this Code.
Thus, the handling of the mortgaged property shall be carried out as follows: In case the obligor fails to perform the civil obligation or performs the obligation not as agreed upon, the mortgaged property shall be disposed of as follows: handled by the method agreed upon by the parties or auctioned in accordance with law to perform the obligations. The mortgagee has priority to pay from the proceeds of the sale of the mortgaged property.
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Frequently asked questions
During the marriage, husband and wife have the right to agree to divide part or all of the common property, except:
– Cases that seriously affect family interests, lawful rights and interests of minor children, adult children who have lost their civil act capacity or are unable to work and have no property to feed yourself; or
– In order to evade the performance of obligations under the law.
Thus, husband and wife have the right to make an agreement on division of common property during the marriage period and this agreement must be made in writing and notarized at the request of the spouse or as prescribed by law.
Property created with separate property during the marriage period is still the separate property of the husband and wife and remains under the ownership of that person, unless this property has been merged into the common property of the husband and wife. or property being yields or profits arising from separate property during the undivided marriage or other agreements by the parties.
According to the principle of property division upon divorce, the above property is determined as separate property of the couple and will not be divided upon divorce.
Article 355 of the Civil Code stipulates: In cases where the performance of a civil obligation is due but the obligor fails to perform or performs improperly, the mortgaged property shall be handled in accordance with regulations. in Articles 336 and 338 of this Code.
Thus, the handling of the mortgaged property shall be carried out as follows: In case the obligor fails to perform the civil obligation or performs the obligation not as agreed upon, the mortgaged property shall be disposed of as follows: handled by the method agreed upon by the parties or auctioned in accordance with law to perform the obligations. The mortgagee has priority to pay from the proceeds of the sale of the mortgaged property.
Conclusion: So the above is Mortgage of common property of husband and wife in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
