The establishment of a marriage relationship between a man and a woman must be for the purpose of living together for a long time and building a happy family together. In addition, the property issue is one of the sensitive issues, prone to conflicts for couples before, during and after marriage. So about the matter “Proving separate property before marriage under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Law on Marriage and Family 2014
The concept of marriage
According to the Law on Marriage and Family of Vietnam, marriage is the relationship between husband and wife after implementing the provisions of the law on marriage, in order to live together and build a prosperous and equal family. progress, happiness, sustainability.
A man and a woman establish a marriage relationship to satisfy the emotional needs of the two parties and to support each other in terms of material needs in daily life. Marriage is a relationship attached to the identity of each man and woman as husband and wife. In a society where marital relations are considered legal relations, the association between a man and a woman has the meaning as a legal event that gives rise to certain rights and obligations for the parties involved. husband and wife system.
According to the Law on Marriage and Family of Vietnam 2014, marriage has the following characteristics:
– Marriage is a union between a man and a woman – a monogamous marriage. In order to ensure the principle of monogamous marriage, the Law on Marriage and Family stipulates: it is forbidden for married people to marry or live together as husband and wife with other people or for unmarried people, unmarried but married or living together as husband and wife with a married person (point c, clause 2, Article 5 of the Law on Marriage and Family 2014 No. 52/2014/QH13). Marriage is a union between a man and a woman, so people of the same sex cannot establish a marriage relationship with each other.
– Marriage is an association on a voluntary basis of both men and women: Both men and women have the right to decide on their own marriage, without coercion, without being deceived and without being hindered. After marriage, the maintenance or termination of the marital relationship is based on the voluntariness of each spouse.
– Men and women participating in marriage are completely equal before the law. In the family, each spouse has equal obligations and rights in all respects. In addition to society, as citizens, each spouse has full rights and obligations of citizens recognized by the Constitution. Equal rights between husband and wife are also reflected in the fact that regardless of whether the spouses are Vietnamese or foreigners, people of any ethnicity or religion, their marital relations are respected and protected (Clause 3). 2 Article 2 Law on Marriage and Family 2014 No. 52/2014/QH13).
Is pre-marital property considered joint or separate property?
Pre-marital property is understood as the property of the spouses acquired before the marriage.
Pursuant to Article 43 of the Law on Marriage and Family 2014, specifically as follows:
“Article 43. Separate property of husband and wife
1. Separate property of husband and wife includes property that each person has before marriage; separately inherited property, given separately during the marriage; property divided among husband and wife separately according to the provisions of Articles 38, 39 and 40 of this Law; property serving the essential needs of the husband and wife and other property which, as prescribed by law, belongs to the husband and wife separately.
2. Property formed from separate property of husband and wife is also separate property of husband and wife. Yields and profits arising from separate property during the marriage period shall comply with the provisions of Clause 1, Article 33 and Clause 1, Article 40 of this Law.”
In addition, according to Article 46 of the Law on Marriage and Family 2014 stipulating that the separate property of husband and wife should be added to the common property as follows:
“Article 46. Importing separate property of husband and wife into common property
1. The merging of separate property of husband and wife into common property shall be done according to the agreement of husband and wife.
Compared with the above provisions, the assets you have before marriage include: bank savings, gold and real estate, … if you do not have an agreement to enter the common property, those assets are your private property.
Whether separate property is added to the common property of husband and wife upon marriage or not is by agreement, there are no mandatory cases.
How to divide assets before marriage?
As analyzed above, pre-marital property is separate property of husband and wife, division of pre-marital property is division of husband and wife’s separate property when divorce occurs.
According to the provisions of the marriage and family law, the division of separate property will be prioritized by the agreement of the husband and wife. If the husband and wife cannot reach an agreement, the provisions of the law shall apply and the separate property will be divided as follows:
• Separate property of a husband and wife is under their ownership, except for cases where separate property has been merged into common property according to the provisions of this Law.
• In case of merger or mixing of separate property with common property and the husband and wife have a request for property division, they shall be paid the value of their property’s contribution to that property, except where the husband and wife have other agreements.
Thus, if the husband and wife do not have an agreement on the division of separate property and request the court to settle, according to the law, the husband and wife’s separate property belongs to that person, unless Separate property has been merged into common property.
Proving property before marriage under Vietnam law
Although the law has provisions on common property and separate property of husband and wife, it is not easy to clearly determine which property is separate property during marriage. Therefore, to be determined to have separate property during the marriage, the spouses need to prove it. Proving property before marriage under Vietnam law y Clause 3, Article 33 of the Law on Marriage and Family 2014 affirms:
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.
Thus, to be considered as the private property of a wife or husband, that person must prove it.
Specifically, in order to prove the pre-marital property of the spouses, the following documents can be based on: Types of purchase and sale contracts, invoices, documents on purchase, sale, gift … obtained in advance. When married.
Depending on each specific case and what kind of documents the husband and wife themselves have to present to the competent authority when requesting for division of common property and identification of separate property.
What property do husband and wife have in common?
According to Article 37 of the Law on Marriage and Family 2014 stipulating the common property obligations of husband and wife as follows:
“Article 37. Joint property obligations of husband and wife
Husband and wife have the following common property obligations:
1. Obligations arising from transactions established by the husband and wife’s agreement, the obligation to compensate for damage for which the husband and wife are jointly liable as prescribed by law;
2. Obligations performed by a spouse to meet the family’s essential needs;
3. Obligations arising from the possession, use and disposition of common property;
4. Obligations arising from the use of separate property to maintain and develop the common property or to generate the main source of income for the family;
5. Obligation to compensate for damage caused by their children which, according to the Civil Code, parents must compensate;
6. Other obligations as prescribed by relevant laws.”
Accordingly, the common property obligations of husband and wife are specified as above.
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Frequently asked questions
The settlement of property shall be agreed upon by the parties; if no agreement can be reached, at the request of the husband and wife; or of husband and wife, the Court shall settle according to the following provisions:
– The common property of husband and wife is divided in half but taking into account a number of factors;
Separate property of a spouse under his/her ownership; except where separate property has been merged into common property as prescribed.
02 cases of importing separate property into the common property of husband and wife
– Enter before marriage: This form is also prescribed by Article 47 of the Law on Marriage and Family as an agreement to establish the property regime of husband and wife. Accordingly, this agreement must be made before marriage and notarized/certified in writing.
– Entering after marriage: This is a form of agreement to enter separate assets into the common property of husband and wife
Pursuant to Article 43 of the Law on Marriage and Family 2014 stipulating above, your own property is completely entitled to your name on that land use right certificate. According to the above provisions, your sale of property and use that money to buy other property that is still considered your own property. However, to avoid future disputes, you should keep records and documents proving that you own the property based entirely on the money obtained from your own property. such as payment receipts, sales contracts.
Pursuant to the provisions of Article 43 of the Law on Marriage and Family 2014, the fact that you have signed an agreement is considered a basis to prove your private ownership of the property which is the above-mentioned land use right. If in the future there is a dispute in court, it is considered as proof, in addition, you should keep other documents such as a contract to donate money between your parents and you, this ensures give you enough solid grounds to prove your separate property and that your husband cannot dispute it in court.
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