Marriage is the result of a process of love between two people, but no one guarantees that that marriage can last forever. When the purpose of marriage is no longer achieved, divorce is the last option to free each other.
In fact, divorce takes place in two directions: divorce by mutual consent and divorce with elements of dispute. When divorcing, property is often the top factor and is also the factor that often takes the most time to resolve. Therefore, finding out specifically about the issue of property division is necessary when deciding on divorce.
Principles for dividing property between husband and wife upon divorce?
Accordingly, on the issue of property division, it will be divided according to the provisions of Article 59, Law on Marriage and Family 2014, which specifically stipulates the principles of division as follows:
“Article 59. Principles for resolving husband and wife property upon divorce
- In the case of a marital property regime according to law, the property settlement is agreed upon by the parties; If no agreement can be reached, at the request of the spouse or both spouses, the Court shall resolve the matter according to the provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.
In case the husband and wife's property regime is according to an agreement, the property settlement upon divorce shall apply according to that agreement; If the agreement is not complete and clear, the corresponding provisions in Clauses 2, 3, 4 and 5 of this Article and in Articles 60, 61, 62, 63 and 64 of this Law shall be applied to resolve it.
- The common property of husband and wife is divided in half, taking into account the following factors:
- a) Circumstances of the family and of the spouse;
- b) Contributions of husband and wife to the creation, maintenance and development of common assets. The labor of husband and wife in the family is considered as paid labor;
- c) Protect the legitimate interests of each party in production, business and profession so that the parties can continue to work and generate income;
- d) Each party's fault in violating the rights and obligations of husband and wife.
- The common property of husband and wife is divided in kind; if it cannot be divided in kind, it is divided according to value; Any party receiving property in kind that has a value greater than the portion they are entitled to must pay the other party the difference.
- The separate property of a husband or wife belongs to that person, except in cases where the separate property has been merged into common property according to the provisions of this Law.
In case there is a merger or mixing of separate property with common property and the husband and wife request to divide the property, they will be paid the value of their property contributed to that property, except in cases where If the couple has another agreement.
- Protect the legitimate rights and interests of wives, minor children, and adult children who have lost civil act capacity or are unable to work and have no assets to support themselves.
Thus, if there is no agreement, the principle of division can be simply understood as each party gets half (1/2) of the value of the property created during the marriage. However, the judge will consider other factors such as: Each party's own circumstances, contributions, errors of the parties... meaning that the division of 50:50 % price will not be rigidly applied. The asset value can be understood more flexibly than dividing it in half: 40:60 or 45:55 % the asset value created. In fact, in special cases we have seen that it is possible to split the ratio: 70/30 or 80/20 is still considered legal and legal.
In addition, there are also principles:
- Principles for dividing common property in kind (If it cannot be divided in kind, then divide it 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 it will be valued into money for division. The party receiving the valuable in kind must pay the difference back to the other party. .
- The principle that someone's private property belongs to that person (except in cases where private property has been merged into common property. In case of merger or mixing of private property with common property, the party does not receive the property). assets will be paid the value of their assets contributed to that asset block).
How to determine common property and separate property of husband and wife
- For common property:
“Article 33. Common property of husband and wife
- 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 legal income during the period. marriage, except for the cases specified in Clause 1, Article 40 of this Law; Property that husband and wife jointly inherit or gift together and other property that husband and wife agree on are common property.
Land use rights that husband and wife acquire after marriage are common property of the couple, except in cases where the husband or wife inherits separately, is given separately or acquired through transactions with separate property.
- The common property of husband and wife is under common ownership and is used to ensure the family's needs and fulfill the common obligations of husband and wife.
- In cases where there is no basis to prove that the property over which husband and wife are in dispute is the separate property of each party, that property is considered common property.
Thus, the common property of husband and wife is determined to include:
+ Common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, yields, income arising from separate property and other legal income during the marriage period. marriage period, except in the case of division of common property during the marriage period;
+ Property that husband and wife jointly inherit or gift together and other property that husband and wife agree on are common property.
+ Land use rights that husband and wife acquire after marriage are common property of the couple.
+ In cases where there is no basis to prove that the property over which the husband and wife are in dispute is the separate property of each party, that property is considered common property.
In Article 9 and Article 10 of Decree 126/2014/ND-CP there are also detailed instructions on the above regulations. Accordingly, Article 9 of Decree 126/2014/ND-CP explains "other legal income" of husband and wife during the marriage period including:
+ Bonuses, lottery winnings, subsidies, except for subsidies and incentives that spouses receive according to the law on incentives for people with meritorious services to the revolution and other property rights attached to them. with the identity of husband and wife;
+ Property over which husband and wife have established ownership rights according to the provisions of the Civil Code for derelict objects, buried or sunken objects, dropped or forgotten objects, livestock and poultry lost, aquatic pets;
+ Other legal income as prescribed by law.
Article 10 of Decree 126/2014/ND-CP explains "yields and income arising from the separate property of husband and wife", accordingly:
+ Yields arising from the husband's and wife's separate property are natural products that the husband and wife get from the husband and wife's separate property;
+ Income arising from the husband and wife's separate property is the benefit that the husband and wife gain from exploiting the husband and wife's separate property.
- For private property:
“Article 43. Separate property of husband and wife
- Separate property of husband and wife includes property that each person had before marriage; property that is inherited separately or given away during the marriage; Property is divided separately between husband and wife according to the provisions of Articles 38, 39 and 40 of this Law; property that serves the essential needs of the husband and wife and other property that according to the law belongs to the husband and wife separately.
- Property formed from the separate property of the husband and wife is also the separate property of the husband and wife. Yields and income 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.”
Thus, the separate property of husband and wife includes:
+ Separate property of husband and wife includes property that each person had before marriage;
+ Separately inherited property, given separately during the marriage period;
+ Assets are divided separately between husband and wife according to regulations;
+ Assets that serve the essential needs of the husband and wife and other assets that according to the law are privately owned by the husband and wife.
+ Property formed from the separate property of the husband and wife is also the separate property of the husband and wife. Yields and income arising from separate property during the marriage period are implemented according to regulations.
Typical example of property division upon divorce: Judgment 34/2018/HNGD-ST dated March 7, 2018 on divorce, child custody disputes, and property division upon divorce.
Summary of the verdict:
Ms. Nguyen Thi V (wife) married Mr. Trinh Xuan M in 1995.
Regarding property: When they got married, Mr. and Mrs. Trinh Xuan B (Mr. M's biological parents) gave them a piece of land of 334 square meters. In 2012, the couple built a level 4 house and auxiliary buildings on the land area mentioned above.
Here, the common property determined by the Court includes the land that Mr. M's parents gave to him and his wife and the property that each person created during the marriage, which is a level 4 house and other buildings. The two of them built it after getting married.
About common children: The two live together and have 3 children, Trinh Thi V (1996), Trinh Thi H (2001) and Trinh Xuan V (2006).
The Court's resolution:
First, if the couple can agree on the property and only request the Court to recognize it, they will only have to pay the first instance civil court fee: 300,000 VND. If an agreement cannot be reached and the court requests division, the court fee must be paid according to the quota calculated based on the value of the divided assets.
Here, because the two people requested to divide the property, in addition to the 300,000 first-instance civil court fee, Ms. V had to pay an additional 7,399,600 VND and Mr. M had to pay 8,081,100 VND in court fees for asking the Court to divide the property.
Second, the common property of husband and wife will be divided in half but also consider a number of factors as follows: based on the circumstances, each party's contribution to that common property, and each party's fault. to divorce.
The assets of the two people were divided in half, however, the Court based on the land the two people were living in originating from Mr. V's parents, so when dividing, they also considered giving Mr. M a larger share.
In order to facilitate use and not lose the use value of the assets, assets attached to land will be divided and assigned to the party with land use rights who owns the assets attached to the portion. of that land area, the difference in assets will be handed over in money by the other party.
- The court divided as follows:
Assigned Ms. Nguyen Thi V to own the kitchen area worth 24,854,000 VND; Pro-cement roof barn worth 12,573,000 VND; iron gate worth 1,725,000 VND; corrugated iron roof without walls (2×3.4m) worth 2,040,000 VND and the right to use a land area of 167 m2 worth 66,800,000 VND. Total: 107,992,000 VND
Assigned Mr. Trinh Xuan M to own 01 tile-roofed house worth 132,476,000 VND; corrugated iron roof (2.3 x 3.4m) worth 2,346,000 VND and the right to use a land area of 167 m2 worth 66,800,000 VND. Total: 201,622,000 VND
The difference in assets of Mr. Trinh Xuan M is obliged to hand over to Ms. Nguyen Thi V the amount of 40,000,000 VND (Forty million VND).
The difference in Mr. M's assets compared to Ms. V's is nearly 100,000,000 VND, but Mr. M only has to hand over 40,000,000 VND to Ms. V.
- How the court divided:
+ Divide the land in half: each person has 167m2
+ The couple built the house but Mr. M got a larger portion.
It is not possible to divide the house in half and give each person half, thus losing the value of the house. Instead, the Court gives each person half of the land area because this part is easier to divide in half and this does not cause any loss. value of the land plot.
Instead of having to pay Ms. V the difference of nearly 100,000,000 VND, he only paid 40,000,000 VND (this 40,000,000 million is considered the difference in him enjoying a larger part of the house and nearly 60,000,000 VND). The remaining copper, he enjoys more because this is the land his parents gave him).
Thus, the division of common property of husband and wife upon divorce can be resolved by agreement between husband and wife or by the Court.
