When divorcing, one of the things couples care about is the division of marital property. So according to the law, how does the division of property upon divorce regulate? What do you need to know in order not to lose money when dividing assets during a divorce? Let’s find out with Lawyer X in the article below!
Legal grounds
– Law on Marriage and Family 2014
– Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP
Time to require to divide common property
According to current Vietnamese law, marital property includes:
– Property created by husband and wife, income from labor, production, business, yields, profits from separate property, and other lawful income during the marriage, unless arising from the separate property after the division;
– The right to use land after marriage, except for the case of separate inheritance, separate gift, or through the transaction with separate property.
In which, the common property of husband and wife is under common ownership and is used to meet the needs of the family and fulfill the common obligations of husband and wife.
In addition, according to the provisions of the Law on Marriage and Family, on the husband and wife’s common property regime, the law respects the agreement of the couples. Therefore, the division of marital property can do during the marriage, right at the time of divorce, or after the divorce, depending on the agreement.
Type of property that is not required to be divided upon divorce
During the marriage, husband and wife can have common property or separate property. When you divorce, the division of property is based on the agreement of the two people. Accordingly, there are two types of property as follows that are not subject to division when the couple divorces:
– Property that is agreed not to divide. The principle of divorce settlement according to Article 59 of the Law on Marriage and Family is voluntary and agreed upon. Therefore, if husband and wife agree on common property, the Court will recognize such agreement;
– Separate property of husband and wife: According to Article 11 of Decree 126 of the Government in 2014, the following properties that considered separate property: Property rights to intellectual property objects; Property acquired before the marriage; Property inherited separately, given during marriage…
With these separate properties, because there is no contribution from the other person, this person cannot ask the Court to divide.
In divorce, will the husband and wife’s common property be divided?
When divorcing, husband and wife have the right to reach an agreement among themselves on all issues including the division of property. Therefore, the common property upon divorce can be divided by agreement.
If an agreement cannot be reached and either party or both parties make a request, the Court will settle it according to the provisions of Clause 2, Article 59 of the Law on Marriage and Family by dividing it in half but taking into account the following factors:
– Circumstances of the family and husband and wife such as health status, working ability… Based on the actual situation, the party that is more difficult after the divorce will be divided more…
– Contribution of husband and wife to the creation; maintain and develop this common property. The party with more effort will be shared more. However, the husband and wife who stay at home are still counted as workers with income equivalent to those who work;
– Protect the legitimate interests of each party in production; business and profession so that the parties have conditions to continue working to generate income. However, this protection must not affect the minimum living conditions of the other person;
– The fault of each party in violation of the rights and obligations of the husband and wife: The fault of one party leads to the divorce of the husband and wife: One of the two commits domestic violence, etc.
In particular, when dividing marital property; The court must consider the lawful rights and interests of the wife and minor children; the child is an adult but has lost the capacity for civil acts, or is unable to work or property to support themselves.
Is it possible to claim property division after being divorced for many years?
According to the provisions of Clause 1, Article 7 of the Joint Circular No. 01 of 2016; husband and wife upon divorce have the right to reach an agreement among themselves on all issues; including the division of common property between husband and wife.
If an agreement cannot be reached and a request is submitted to the Court, the Court will consider it; decide whether to apply the property regime by agreement or by law.
Therefore, the division of common property between husband and wife is the right of two people. Two people can follow an agreement or ask the Court to settle. Therefore, if there is a request, even after many years of divorce, they still have the right to request a divorce from the Court.
Living with the husband’s family, how do divide the wife and husband’s assets?
Currently, it is not uncommon for a husband and wife to live with the husband’s family or the wife’s family. At that time, if you want to divorce and divide the common property of the husband and wife, how will the property do?
Knowing that fact, Article 61 of the Law on Marriage and Family 2014 guides how to divide property in case the husband and wife live together with the family. Specifically:
– Unable to determine marital property and common family property: Based on husband and wife’s contributions to the creation, maintenance, and development of the common property as well as to the common life of the family to divide a part of the property among the husband and wife.
The division of this property will be upon by the husband and wife with the family. If no agreement is reached, ask the Court to settle.
– Determination of husband and wife’s property in common family property: Based on the determined portion of the property of husband and wife in common property to divide in half based on the following factors: Contribution effort, fault of the spouses beside…
Can children be divided from the common property of parents?
The division of property upon divorce does only with the property of the husband and wife, and according to the agreement of the couple (if any). Therefore, upon divorce, husband and wife divide common property unrelated to children’s property; As well as the child will not participate in the process of dividing the property of the father and mother.
However, after the husband and wife complete the procedures for property division upon divorce; either or both of them can give their children a portion of the property what they own; or leave a will for their children after the death of their parents.
Thus, not all cases of the property division upon divorce must divide equally. It can be based on the agreement of the couple and many factors as above to divide.
Related article:
Divorce property division involving foreign elements
Property division upon divorce: What should be noted in Vietnam?
– Can you keep all your assets when you divorce your adulterous wife?
Frequently asked questions
– Both parties voluntarily divorce
– The two parties have agreed on the division of assets, child custody, support obligations…
Husband and wife who want to get a divorce can completely use a handwritten divorce form, type it, buy it at the Court or download the form online.
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