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Property division upon divorce with foreigners in Vietnam

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Property division after divorce is said to be a mandatory provision between two parties (husband and wife) who can voluntarily agree on the division of common property, separate property and other financial obligations. or request the court to divide according to the provisions of law. Property division and child custody are always two important issues that need to be resolved when getting a divorce. It will be easier, save more time and cost if the parties can come to an agreement among themselves to resolve these issues. In addition, in cases where the parties do not agree, they have the right to request the court to settle in accordance with the law. We invite you to read through the article of Lawyer 2 to understand and understand the provisions on “Property division upon divorce with foreigners in Vietnam” which can help readers understand more deeply about the law.

Legal grounds

Law on Marriage and Family 2014

Basis for property division of husband and wife upon divorce

According to the provisions of law, between husband and wife, there exists an equal relationship with each other in terms of rights and obligations, especially the right to the common property of two people, regardless of whether they are income workers or just employees. is a domestic worker in the family. Therefore, upon divorce, the couple’s assets are divided as follows:

– Case 1: If the spouses do not agree on the division of property during the time of living together, upon divorce, the parties can agree to divide the property by themselves. In case the parties fail to reach an agreement or fail to reach an agreement, they may request the Court to settle in accordance with the provisions of law.

– Case 2: If the husband and wife have agreed to divide the property during their marriage, the property will be divided according to this agreement upon divorce. However, if there are grounds to determine that this agreement is not clear and complete, the Court may divide it according to the provisions of law.

The grounds for division of common property applied by the Court when dealing with property issues when husband and wife divorce are specified in Article 59 of the Law on Marriage and Family 2014. Accordingly, the property will be divided in two but taking into account the following factors:

– Conditions and circumstances of the family as well as that of the wife and husband.

  • The effort of the wife and husband in creating that property as well as maintaining and developing this property.
  • For property that is a tool in production, business or associated with the profession of one of the parties, the division of property must ensure conditions for the parties to continue working.

In addition to the above factors, in the process of considering the division of common property, the Court must also base on whether or not the fault of the spouses in violating the obligations of the wife or husband.

Note:

– The common property of husband and wife, when divided, will be considered by the Court to be divided in kind. Only when the division in kind cannot be done will the division be based on the value of the property. When dividing property by value, the spouse receiving a larger portion than the beneficiary must pay back the excess to the other party according to regulations.

– In the case where the separate property of each person and the common property have been consolidated, the spouse will be paid at the request of their property value.

– Although in principle, the common property of husband and wife is only divided upon divorce to husband and wife, but still must ensure the interests of the wife or minor children, adult but lose the legal capacity to act. civil, incapable of work and without property.

Principles of property settlement of husband and wife upon divorce

In the case of a husband and wife’s property regime as prescribed by law, the settlement of property shall be agreed upon by the parties; if no agreement can be reached, at the request of the husband, wife or husband and wife, the court shall decide according to the provisions of Clauses 2, 3, 4 and 5, Article 59 of the Law on Marriage and Family 2014 and Article 60. , 61, 62, 63 and 64 of the Law on Marriage and Family 2014.

In case the property regime of husband and wife is agreed upon, the settlement of property upon divorce shall be applied according to such agreement; if the agreement is not complete and clear, the corresponding provisions of Clauses 2, 3, 4 and 5, Article 59 of the Law on Marriage and Family 2014 and Articles 60, 61, 62, 63 and 64 of the Law shall apply, respectively. Law on Marriage and Family 2014 to resolve.

The common property of husband and wife is divided in half, taking into account the following factors:

  • Circumstances of the family and of the husband and wife;
  • Contribution of husband and wife 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.
  • Common property of husband and wife is divided in kind, if it cannot be divided in kind, it shall be divided according to value; which party receives a portion of the property in kind with a value greater than its share, must pay the other party the difference.
  • Separate property of husband and wife is under their ownership, except for cases where separate property has been merged into common property according to the provisions of the Law on Marriage and Family 2014.

In the event of a merger or amalgamation of separate property with common property and the spouses have a request for property division, they shall be paid the value of their property’s contribution to such property, except for if the spouses have other agreements.

Protecting the legitimate rights and interests of wives, minor children and adult children who have lost their civil act capacity or are unable to work and have no property to support themselves.

Division of common property in some cases

Property division in case the husband and wife live together with the family

  • In case the husband and wife live together with the family but divorce, if the husband and wife’s assets in the common property of the family cannot be determined, the husband or wife will be entitled to a part of the common property of the apartment family. based on the 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. The division of a part of the common property shall be agreed upon by husband and wife with their families; If no agreement can be reached, ask the Court to settle.
  • In case the husband and wife live together with the family and the husband and wife’s assets in the family’s common property can be determined by part, upon divorce, the husband’s share of the property shall be deducted from the family’s common property. such common to be divided according to the provisions of Article 59 of this Law.

Division of land use rights of husband and wife upon divorce

  • Division of land use rights as private property:

The right to use land is the private property of either party, and upon divorce, it still belongs to that party.

The division of land use rights as common property of husband and wife upon divorce is done as follows:

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 they cannot reach an agreement, they shall request the Court to settle it according to the provisions of Article 59 of the Law on Marriage and Family 2014.

“Article 59. Principles of property settlement of husband and wife upon divorce

  1. In the case of the husband and wife’s property regime as prescribed by law, the settlement of property shall be agreed upon by the parties; if agreement cannot be reached, at the request of the husband, wife or husband and wife, the Court shall settle the settlement according to the provisions of Clauses 2, 3, 4 and 5 of this Article and in Articles 60, 61, 62, 63 and 64 of this Law.

In case the property regime of husband and wife is agreed upon, the settlement of property upon divorce shall be applied according to such agreement; if the agreement is not complete and clear, the corresponding provisions in Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law shall apply for settlement.

  1. Common property of husband and wife is divided in half, 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.

  1. The husband and wife’s common property shall be divided in kind, if it cannot be divided in kind, it shall be divided according to its value; which party receives a portion of the property in kind with a value greater than its share, must pay the other party the difference.
  2. Separate property of a husband and wife shall be under their ownership, except for cases where separate property has been merged into common property under the provisions of this Law.

In the event of a merger or amalgamation of separate property with common property and the spouses have a request for property division, they shall be paid the value of their property’s contribution to such property, except for if the spouses have other agreements.

  1. To protect the lawful rights and interests of wives, minor children and adult children who have lost their civil act capacity or are unable to work and have no property to support themselves.
  2. The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding this Article.”

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;

  • 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 rights shall be separated and divided according to the above provisions;
  • For agricultural land for perennial crops, forestry land for afforestation, and residential land, it shall be divided according to the provisions of Article 59 of the Law on Marriage and Family 2014;
  • For other types of land, it shall be divided according to the provisions of the law on land.
  • 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 law. prescribed in Article 61 of the Law on Marriage and Family 2014.

Dividing the common property of husband and wife into business

Husband and wife who are conducting business activities related to common property have the right to receive such property and must pay the other party the value of the property they are entitled to, unless otherwise provided for by the business law. other determination.

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Frequently asked questions

Shared property but in the husband’s name can be divided?

Property ownership does not depend on household registration. According to the law on residence, citizens have the right and also the obligation to register (household registration) of permanent or temporary residence at a certain location so that the competent state agency can carry out the management. state of residence. In principle, household registration has no meaning in determining property ownership at the place of registration.
In other words, a citizen’s property ownership does not depend on where he or she registers. A person registers in one place but has ownership rights to many properties in different locations. .
Therefore, with the above provisions, even though you have not entered the household registration book with your husband, the assets you and your wife have created during the marriage (including properties that are not in your name) are still common property. couple. You and your husband both have equal ownership (including possession, use and disposition) to the property.

How to determine the property regime of husband and wife during marriage?

According to the provisions of Article 32 of the 2013 Constitution, all citizens have title rights to their lawful properties, and properties created by husband and wife are recognized as divisible consolidated common property. .
And to concretize this, in Article 33 of the Law on Marriage and Family 2014 has defined properties that are considered to be common to husband and wife if they meet the conditions specified in this article.

Conclusion: So the above is Property division upon divorce with foreigners in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com

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