Disputes after divorce are often related to property issues. Therefore, the issue of property division after divorce has always received the attention of many people. So about the matter “The time limit for property division after divorce in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Law on marriage and family 2014
Principle of property division of husband and wife upon divorce
Accordingly, on the matter of property division, it will be divided according to the provisions of Article 59 of the Law on Marriage and Family 2014 specifically stipulating the principles of division as follows:
The principle of halving (Clause 2, Article 59, marriage and family law) but taking into account the following factors:
Circumstances of the family and of the husband and wife;
Husband and wife’s contribution to the creation, maintenance and development of common property. Labor of husband and wife in the family is considered as income labor;
– Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income;
– The fault of each party in violating the rights and obligations of husband and wife.
Thus, it can be understood simply that the principle of halving is that each party gets half (1/2) of the property value created during the marriage. However, the judge will consider other factors such as: The individual circumstances of each party, the effort contributed, the fault of the parties … that is, do not apply rigidly the split of 50:50% of the price. Asset value that can be understood more flexibly than halving can be: 40:60 or 45:55 % of the generated asset value. In fact, in the exceptional cases we’ve seen it is possible to scale: 70/30 or 80/20 is still considered legal and legal.
+ Principle of division of common property in kind (If it cannot be divided in kind, it will be divided by value with payment of the difference in value). This principle is quite easy to understand, the law gives priority to dividing in kind first, if it cannot be divided in kind, then the price will be paid to divide, the party receiving the in-kind has the value of paying back to the other party by the difference amount. .
+ Principle of who’s separate property is owned by that person (except where separate property has been merged into common property. assets will be paid the value of their assets contributed to that property).
How to determine common property and separate property of husband and wife?
According to the provisions of Articles 33 and 43 of the Law on Marriage and Family 2014, there are provisions on the determination of common property and separate property as follows:
Separate property of husband and wife includes properties:
+ Property that each person has before marriage: Based on the date of marriage registration, if such property is available before that date, in principle it is the separate property of the party in whose name the property is owned.
Example: Mr. A married Ms. B on January 1, 2022. Mr. A has a piece of land that was granted on October 10, 2021, and Ms. B has a car registered in her name on September 9, 2021. So, the house is the private property of Mr. A, the car is the private property of Ms. B.
+ Separately inherited property, given separately during marriage: Based on the form of PRIVATE inheritance or private donation to determine separate property.
Example: Mr. A married Ms. B on January 1, 2022. On May 1, 2022, Ms. B’s father, Mr. C, entered into a contract for a separate property for Ms. B a piece of land. So, this land of Ms. B is Ms. B’s private property even though the property is acquired after marriage.
=> Please note: Because the marriage relationship is often based on emotional factors (family affection in general), in Vietnam it is very rarely transparent and clear on the issue of separate inheritance and gifting of property. which is often ‘ambiguous’ in the establishment of inheritance and donation documents. Therefore, Minh Khue Law would like to note that it is necessary to add the word “PRIVATE” to the donation and inheritance documents to avoid disputes arising later in the process of interpreting these donation and inheritance contracts.
How to make a separate contract (similar to the will for a private gift)?
I am: Tran Van C, dedicated to my daughter, Tran Thi C, the house at … according to the land use right certificate number … made on …
Sometimes just adding a word “private” is enough grounds to determine that this is the private property of Tran Thi C.
+ Property is divided between husband and wife (according to articles 38, 39 and 40 of the Law on Marriage and Family 2014).
+ Property to serve the essential needs of spouses and other properties as prescribed by law.
+ Yields and interests formed from someone’s private property are that person’s own property.
For example: Ms. B has 1 billion VND in savings in the bank (As a separate property) before marrying Mr. A. So, the bank interest is also considered as the separate property of Ms. B.
According to Article 33 of the Law on Marriage and Family 2014, in particular, common property includes:
+ Property created by husband and wife, income from labor, production and business activities, yields, profits arising from separate property and other lawful income during the marriage period
+ Property that husband and wife inherit jointly or are given as a gift and other property agreed upon by husband and wife is common property.
+ The land use right acquired by husband and wife after marriage is the common property of husband and wife, except where the spouses are separately inherited, given separately or acquired through transactions with separate property.
+ Common property of husband and wife is under common ownership and is used to meet the family’s needs and fulfill their common obligations.
+ In case there are no grounds to prove that the property in dispute between husband and wife is the separate property of each party, such property shall be considered as common property.
In summary, with this provision, in principle, the property formed during the marriage (from the date of marriage to the date of divorce or when one of the parties dies) is considered common property if it cannot be proved. is private property. And based on the principles of property division upon divorce in Section 1 to resolve if the couple cannot agree on division with each other.
The time limit for property division after divorce in Vietnam
About the statute of limitations for initiating a lawsuit for division of common property
There is no statute of limitations on the statute of limitations for division of common property.
We would like to remind you that: unresolved joint property is different from declaring no joint property. If in the divorce judgment or decision of your husband and wife there is a decision that you and your husband do not have common property, the Court cannot accept and resolve the division of common property if the part of the decision has no property. has not been canceled according to cassation or reopening procedures.
Thus, if in the divorce decision of your spouse there is a provision that the husband and wife have common property of a house and a car, who is in your name and still has the right to request a division of the property. common property at any time.
Petition for division of common property
The petition to request the division of common property after the divorce is written in a similar way using Form No. 23 issued together with Resolution No. 01/2017/NQ-HDTP, specifically as follows.
About marriage, common children, common debt
This is a petition for division of property after divorce, so these issues do not require the Court to resolve and should clearly state:
If a divorce has been obtained by a court judgment or decision, the marital relationship has been terminated in terms of the husband and wife relationship.
In the case of common children, joint debt due to the case of division of common property after divorce does not have a dispute over common child rearing and common debt.
About the request to divide the common property after the divorce
This is an important content of the lawsuit to divide common property after divorce. Therefore, when writing an application, it is necessary to provide all information about the origin of the property, the time of establishing the property, and the content of the request for settlement.
Procedures for filing a lawsuit to divide property after divorce
Prepared profile
When making a lawsuit to request the division of common property after the divorce, it is necessary to prepare documents including:
CLAIMS requesting division of common property after divorce;
Attached supporting documents:
Identity card, citizen identification, or other identification documents;
Household registration book;
Court judgment or decision about divorce;
Papers proving the right to use and own common property of husband and wife;
Jurisdiction of the court
Competence of courts to settle lawsuits requesting for property division after divorce shall be handled by competent district-level People’s Courts (Article 35 CPC 2015).
If the property has immovable property, the division of property after the divorce does not have a marital and joint parenting dispute, so the jurisdiction is where the disputed real estate is located.
Procedures for resolving property division after divorce
Submit the prepared file to a competent court for settlement;
The court where the application is received will receive the application and carry out the necessary procedures to settle the case;
The court of first instance resolves the case
Appellate trial (if any)
settlement time
Settlement of division of common property after divorce at the first instance level: about 4 to 6 months (if the case is complicated, it may take longer);
Divorce settlement at the appellate level: from 3 to 4 months (if there is an appeal);
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Please see more
- What documents are required for a unilateral divorce according to the law?
- Mediation is a unilateral divorce case
- Property division in divorce: What to know so as not to lose?
Frequently asked questions
Submit the prepared file to a competent court for settlement;
The court where the application is received will receive the application and carry out the necessary procedures to settle the case;
The court of first instance resolves the case
Appellate trial (if any)
Prepared profile
When making a lawsuit to request the division of common property after the divorce, it is necessary to prepare documents including:
APPLICATIONS requesting division of common property after divorce;
Attached supporting documents:
Identity card, citizen identification, or other identification documents;
Registration book;
Court judgment or decision on divorce;
Papers proving the husband and wife’s right to use and own common property;
Jurisdiction of the court
The competence of the Court to settle lawsuits requesting for property division after the divorce is settled by the district-level People’s Courts (Article 35 of the Civil Code 2015).
There is no statute of limitations on the statute of limitations for division of common property.
We would like to remind you that: unresolved joint property is different from declaring no joint property. If in the divorce judgment or decision of your husband and wife there is a decision that you and your husband do not have common property, the Court cannot accept and resolve the division of common property if the part of the decision has no property. has not been canceled according to cassation or reopening procedures.
Thus, if in the divorce decision of your spouse there is a provision that the husband and wife have common property of a house and a car, who is in your name and still has the right to request a division of the property. common property at any time.
Conclusion: So the above is The time limit for property division after divorce in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
