Nowadays, along with the industrialization and modernization, the demand for land use is increasing day by day. In order to achieve development and make optimal use of land resources, Vietnamese law has introduced legal provisions on land use rights, meaning both to help the State effectively implement the management of land. and protect the rights of land users. Therefore, the current Land Law 2013 has very specific provisions on the legal nature of land use rights. So about the matter “Dividing land use rights after divorce in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Law on Marriage and Family 2014
- Decree 126/2014/ND-CP
What is land use right?
Article 1 of the 2003 Land Law stipulates: “The State represents the all-people owner of land and uniformly manages the land”. Article 4 of the 2013 Land Law specifically stipulates the right to own land: “Land belongs to the entire people, and is managed by the State on behalf of the owner and uniformly managed. The State grants land use rights to land users in accordance with this Law”.
Currently, the law has not introduced the concept of land use right. Article 189 of the 2015 Civil Code defines: “The right to use is the right to exploit the utility, to enjoy the yields and profits from the property”. Learn about the legal nature, land use rights are the rights of the subjects to exploit, enjoy the benefits and profits from the use of land allocated, leased or transferred from the State by the State. other through the conversion, transfer, lease, sub-lease, inheritance, donation… However, in the view of the majority of legislators, the right to use land is the right to exploit the properties. usefulness of the land to serve the socio-economic development goals of the country. From an economic perspective, land use rights are important because they satisfy the needs and bring material benefits to the owners in the process of using the land.
What is the common property of husband and wife?
Pursuant to the provisions of Article 33 of the Law on Marriage and Family 2014, the common property of husband and wife is as follows:
“Article 33. Common property of husband and wife
1. Common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, yields, profits arising from separate property and other lawful incomes in the family. the marriage period, except for the cases specified in Clause 1, Article 40 of this Law; 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.
Land use rights acquired by husband and wife after marriage are the common property of husband and wife, except for cases where the spouses are separately inherited, given separately or acquired through transactions with separate property.
2. The husband and wife’s common property is under common ownership and is used to meet the family’s needs and fulfill their common obligations.
3. 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.
Article 9 of Decree 126/2014/ND-CP stipulates other lawful incomes of husband and wife as follows:
“1. Bonuses, lottery winnings, allowances, except for the case specified in Clause 3, Article 11 of this Decree.
2. Property that husband and wife have established ownership of according to the provisions of the Civil Code with respect to derelict objects, buried or sunken objects, dropped or forgotten objects, livestock and livestock Lost poultry, aquatic pets.
3. Other lawful income as prescribed by law.”
Article 10 of Decree 126/2014/ND-CP stipulates yields and profits arising from separate property of husband and wife as follows:
“1. Profits arising from the private property of husband and wife are natural products that husband and wife obtain from their own property.
2. Income arising from separate property of a husband and wife is the profit that a husband or wife earns from exploiting their own property.”
Dividing land use rights after divorce in Vietnam
According to Clause 14, Article 3 of the Law on Marriage and Family 2014, divorce is regulated as follows:
Divorce is the termination of the husband and wife relationship according to a legally effective judgment or decision of a court.
It can be seen that, when the divorce request of the husband and wife has been resolved by the Court through a legally effective judgment or decision, the marriage relationship officially ends. At that time, if the husband and wife have agricultural land as common property, it shall be divided according to Clause 2, Article 62 of the Law on Marriage and Family 2014 as follows:
“Article 62. Division of land use rights of husband and wife upon divorce
1. The land use right which is the private property of any party will still belong to that party upon divorce.
2. The division of land use rights as common property of husband and wife upon divorce shall be done as follows:
a) For agricultural land for planting annual crops and aquaculture, if both parties have the demand and conditions to directly use the land, it shall be divided according to the agreement of the two parties; if no agreement can be reached, request the court to settle it according to the provisions of Article 59 of this Law.
In case only one party has the need and conditions to directly use the land, that party may continue to use it but must pay the other party for the value of the land use right to which he/she is entitled;
b) In case the husband and wife have the right to use agricultural land for planting annual crops or aquaculture with the household, upon divorce, the husband and wife’s land use right shall be separated and divided according to the provisions of Point a. a this Clause;
c) Agricultural land for planting perennial crops, forestry land for afforestation, and residential land shall be divided according to the provisions of Article 59 of this Law;
d) For other types of land, it shall be divided according to the provisions of the law on land.
3. In case the husband and wife live together with the family but do not have the right to use land together with the household, upon divorce, the interests of the party who do not have the right to use the land and do not continue to live with the family shall be settled. according to the provisions of Article 61 of this Law.”
How is housing divided in divorce?
Pursuant to the provisions of Clause 2, Article 59 of the Law on Marriage and Family 2014:
“Common property of husband and wife is divided equally but taking into account the following factors:
a) Circumstances of the family and of the husband and wife;
b) The husband and wife’s contribution to the creation, maintenance and development of the common property. Labor of husband and wife in the family is considered as income labor;
c) Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income;
d) The fault of each party in violating the rights and obligations of husband and wife.”
Accordingly, when divorcing the house is divided in half but taking into account the above factors. In case the spouse wants to take ownership of the house, they must proceed to give the husband/wife an amount corresponding to the share of the house that the husband/wife is divided.
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Please see more
- Recognition of agricultural land use rights under Vietnam law
- The State recognizes the land use right in Vietnam
- Agricultural land use regime according to Vietnam land law
Frequently asked questions
The registration of land use rights shall be carried out at the land use right registration office in the following cases:
– Current land users who have not been granted a land use right certificate
Land users exercise the right to convert, transfer, inherit, donate, lease or sublease land use rights, mortgage, guarantee, and contribute capital with land use rights in accordance with the Land Law. band;
– The recipient of the transfer of the land use right;
A land user who has a certificate of land use right permitted by a competent state agency to change its name, change land use purpose, change the land use term or change the boundary line of the land plot ;
Persons who are entitled to use land according to a judgment or decision of a people’s court, a judgment enforcement decision of a judgment enforcement agency, or a decision on settlement of a land dispute of a competent state agency that has been executed .
Under the regulations of the law, the purpose of land use right registration is to record the legal status of land use rights, ownership of houses, other land-attached assets and land management rights for a land parcel in the cadastral records.
First, the two of you need to carry out the procedures for re-issuance of the land use right certificate due to loss (or any other reason) specified in Article 77 of Decree No. 43/2014/ND-CP. Accordingly, you and your wife need to report to the People’s Committee of the commune where the land is located about the loss of the Certificate. Except for the case of loss of certificate due to natural disaster, fire delay, the Commune People’s Committee is responsible for posting the notice of loss of Certificate at the headquarters of the Committee within 30 days. After 30 days from the date of posting the notice, the commune-level People’s Committee will issue you and your wife a Certificate of listing, in case the Certificate is lost due to fire or natural disaster, the People’s Committee of The commune shall issue a certificate of such disaster or fire. After that, you and your wife need to submit an application for re-issuance of the Certificate along with the Certification of the Commune People’s Committee to the Land Use Right Registration Office of the District People’s Committee for re-issuance of the Certificate.
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