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DIVISION OF PROPERTY IN DIVORCE
Divorce is not only a personal decision, but also a turning point that affects the economic, financial, and family relationship foundation. This process requires careful preparation, from determining assets to dividing them fairly and in accordance with legal regulations. During the divorce process, the division of assets is often the main cause of conflict because it is directly related to the economic interests of the parties. The handling must ensure transparency, strictness, and compliance with legal regulations, especially in determining common and separate assets. At the same time, there must be coordination between the parties to reach a consensus or seek intervention from the court if there is a dispute.
Classification of assets in the division list upon divorce
According to regulations, assets divided upon divorce include 2 types:
- Common property: Property formed during marriage, including income from labor, business profits, joint investment assets... There are 3 cases of dividing common property:
- Division of property when husband and wife live with family
When a couple divorces and lives with their family, if the common property cannot be clearly determined, one of the parties will be divided into a portion of the family’s common property. This division will be based on contributions to building and maintaining the property as well as family life. Agreement between the couple and the family is essential; if consensus cannot be reached, the Court can be asked to intervene.
If the common property between spouses can be determined, then upon divorce, the division will be carried out according to regulations.
- Division of land use rights of spouses upon divorce
Depending on the type of land and land use needs, there will be different ways of division according to legal regulations.
- Division of joint property of spouses in business
If a spouse is conducting a business related to common property, they have the right to receive that property. They must pay the other party the corresponding value of the property to which they are entitled, except in other cases prescribed by law.
• Separate property: Property acquired before marriage, “prenuptial agreement” or inherited or given as a gift during marriage.
How does the division take place?
For common property:
Property division usually takes place in two forms:
- Agreement between the two parties:
In the case of applying the property regime of spouses according to the provisions of law, the settlement of property issues upon divorce is given priority based on the agreement between the two parties. The agreement on the division of common property must be made in writing. This document is notarized at the request of the spouses or according to the provisions of law.
- Division by court decision:
In the event that the parties cannot reach an agreement, the court will consider the evidence and decide on the division based on the provisions of the law.
When dividing the common property of spouses, the principle of equal division will be applied. However, the court will also consider several important factors to ensure fairness and reasonableness. These factors include:
Family circumstances of the parties:
The specific economic situation, health, and actual needs of each person. For example, the party who is raising young children or facing more difficulties will be given priority.
Each party's contribution:
This includes not only financial contributions but also efforts to take care of the family, raise children, and maintain a common life. The party that contributes more to the creation, maintenance, and development of the common property will be divided into the property in proportion to their efforts.
Protecting the legitimate interests of the parties:
The goal is to ensure the legal and legitimate rights of each party after divorce, especially the rights of women, children, or vulnerable people in the marital relationship.
The fault of the parties in violating the rights and obligations of husband and wife:
In case one party commits a serious violation, such as adultery, domestic violence, or failure to fulfill obligations to the family, this factor will be considered to decide the level of property division.
In which, assets such as movable or immovable assets will be determined according to the law of the country where the assets are located. This means that during the marriage, assets arise in many countries and currently the assets are still existing in countries outside of Vietnam. According to regulations, assets existing in that country will be classified based on the law of that country.
Real estate is considered a special type of asset because it is attached to the territory and is directly governed by the law of the country where it is located. This means that if during the divorce process, the couple has common assets that are real estate abroad, then issues related to ownership, division, or management of this asset will have to comply with the legal regulations of the host country.
For example, if a couple owns a joint estate in the United States, the division of the property will depend on the state where the property is located, as the US legal system regulates property rights and land-related issues in each state differently. Similarly, if the property is located in other countries such as Australia, Japan, or France, the land and marriage laws of these countries will be applied to resolve disputes.
This rule was created to limit conflicts in the legal systems of countries because currently, in reality, countries have not yet agreed on what is movable property and what is real property, so classifying property based on the geographical location of the object is an effective method to overcome the above conflict problem, in addition to creating conditions for competent authorities at the location of the property to perform their work more effectively without having to worry about conflicting legal regulations between countries. Couples need to carefully study the legal regulations of the country where the property is located to protect their legitimate rights and interests.
The above regulations aim to ensure that the division of property is not only mechanical and stereotyped but also reflects humanity, fairness, and is appropriate to the specific circumstances of each party involved.
For private property
Separate property owned by a husband or wife will belong to that person. However, to prove that this property is separate property before marriage or inherited or given separately during the marriage, there must be sufficient and clear evidence.
Cases of dissipation of the common property of spouses during divorce proceedings
To prevent the dissipation of the common property of spouses before divorce, it is necessary to apply a series of measures in accordance with legal regulations. First of all, it is necessary to clearly understand the rights and obligations related to the common property of spouses. As mentioned above, the common property of spouses includes all types of property that the husband and wife acquire during the marriage, including income from labor, production, and business activities, income from separate property, and other sources of income. Specifically, assets created, jointly inherited, or jointly gifted are considered the common property of the husband and wife. Even the right to use land after marriage belongs to the common property of both parties unless there are separate regulations.
The management and use of common property must be carried out through the consensus of both spouses, especially for assets of great value and importance. In the event of a property dispute, if there is no clear basis for proof, the property will be considered the common property of the couple. To protect the common property and ensure the rights of each party during the divorce process, a feasible option is that the spouses can file a lawsuit for a property dispute during the divorce, requesting the Court to apply temporary emergency measures. These measures may include:
Freezing bank accounts, credit institutions, and state treasury: This measure is applied when necessary to ensure that the property is not illegally transferred or used during the process of resolving the case or enforcing the judgment. When there is evidence that the person concerned has an account at a financial institution, the Court may decide to freeze it to ensure transparency and fairness in the handling of the property.
Freezing assets at the depository: If necessary, the Court may also issue a decision to freeze assets deposited at different locations to ensure the integrity of the assets for both parties. Seizing disputed assets: This is a measure to ensure that assets are not illegally appropriated or transferred during the course of the case.
All of the above measures aim to protect the legitimate rights and interests of both parties in the process of resolving issues related to common assets in the event of divorce. At the same time, they also ensure fairness and transparency in the handling of property disputes, helping to effectively prevent the dissipation of assets.
However, this is a difficult and complicated process. The applicant must provide the following information:
Summary of dispute:
This section requires a summary of the content of the dispute or infringement of the applicant’s legitimate rights and interests. This helps the Court understand the specific issue that the applicant wants to resolve.
Reasons for applying for temporary emergency measures:
In this section, the applicant must provide legitimate reasons for applying for temporary emergency measures. This may include a threat to the common property, and the possibility of serious loss or damage if timely preventive measures are not taken.
Specific requests:
This section refers to the specific temporary emergency measures that the applicant wants the Court to apply. These specific requests may include prohibiting the respondent from transferring or financing any common property or requiring the retention of a specific part of the property during the dispute.
Evidence:
Finally, depending on the specific request and the specific situation, the applicant may provide evidence to demonstrate the need for interim emergency measures. This evidence may include marriage contracts, financial documents, bank account information, or any other documents that may support the dispute.
Court fees in property disputes
The court fees for divorce and property division as well as after divorce are threshold court fees, calculated based on the percentage of the property value that the husband and wife are entitled to.
Disputed property value | Court fees |
From 6,000,000 VND or less | 300.000 VND |
From over 6,000,000 to 400,000,000 VND | 5% of the value of the disputed property |
From over 400,000,000 to 800,000,000 VND | 20,000,000 VND + 4% of the disputed property value exceeding 400,000,000 VND |
From over 800,000,000 to 2,000,000,000 VND | 36,000,000 VND + 3% of the disputed property value exceeding 800,000,000 VND |
From over 2,000,000,000 VND to 4,000,000,000 VND | 72,000,000 VND + 2% of the disputed property value exceeding 2,000,000,000 VND |
From over 4,000,000,000 VND | 112,000,000 VND + 0.1% of the disputed property value exceeding 4,000,000,000 VND |
Thele.blog
Hopefully, thele.blog’s article has provided readers with detailed information about the division of assets during divorce. For more information about other processes and procedures during divorce, please refer to the articles “Vietnam Divorce Procedure” and “12 factors to determine child custody in Vietnam”.
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