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8 inquiries about separation of common property during marriage
Separation of common property during marriage is no longer strange for couples with marital problems. Unlike a prenuptial agreement, this separation of common property occurs during the marriage between the parties. Many couples have chosen to divide common property even though they are still married, for reasons such as disagreements in the management and use of common property, emotional conflicts, and wanting financial independence.
The consequences of property relations after dividing common property during marriage are the main concern of couples when dividing property. Current regulations maintain the legal property regime between husband and wife, thereby stabilizing the property relationship and, more importantly, stabilizing the family relationship, protecting the weaker party’s rights and legitimate interests.
How does the separation of common property during marriage happen?
There are two ways to separate the common property of husband and wife during marriage, specifically:
Making a written agreement to divide the common property during marriage
This method is “Drafting a written agreement on the separation of common property during the marriage” in the case where the husband and wife can reach an agreement on the separation of their common property.
Requesting the Court to divide the common property during marriage
In the case where only one spouse proposes to divide the common property and the other does not agree, or if the husband and wife cannot agree on the method of dividing the common property, leading to a dispute, one of the two parties can file a lawsuit requesting the court to carry out the separation of common property during the marriage.
In which, the common property of husband and wife includes the following types:
The common property of spouses
- Property created by the spouses, income from labor, production, and business activities, profits, income arising from separate property, except for the portion of the property, profits, income arising from the separate property of each party after dividing the common property which is the separate property of the spouses.
- Other legal income during the marriage includes bonuses, lottery winnings, and subsidies, except for cases prescribed by law, property that husband and wife are entitled to establish ownership of according to regulations for ownerless objects, buried objects, sunken objects, lost objects, lost livestock, poultry, aquatic animals and other legal income according to the provisions of law.
- Profits, income:
- Profits arising from the separate property of husband and wife are natural products that husband and wife obtain from their separate property.
- Income arising from the separate property of the husband and wife is the profit that the husband and the wife gain from exploiting their separate property.
- The common property of the husband and wife is jointly owned and used to ensure the needs of the family and to fulfill the common obligations of the husband and wife.
- In cases where the property cannot be proven to be the separate property of the husband or wife, it is considered common property.
Principles of separation of common property during marriage
Accordingly, after registering for marriage, the husband and wife still have the right to agree on the separation of part or all of the common property, except in the following cases:
- The separation of property seriously affects the interests of the family; the rights and legitimate interests of minor children, adult children who have lost their civil act capacity or are unable to work and have no property to support themselves.
- In order to avoid performing the following obligations: raising and supporting parents and children; compensating for damages; making payments when the Court declares bankruptcy; paying debts to individuals and organizations; paying taxes or other financial obligations to the State; and other obligations prescribed by law.
Why should we need the separation of common property during marriage?
First, as the name of this procedure suggests, this is a procedure that helps the husband and wife clearly divide which common assets during the marriage will belong to each person after the separation is completed. The husband and wife can agree to divide only one part of the common assets and divide all the common assets or even record the recognition of one party for the other party’s pre-existing separate assets to avoid future disputes. In the event that the husband and wife decide to divorce each other later, the agreement on the separation of common assets during the marriage will be used by the Court as the basis for the separation of the husband and wife’s assets as agreed. Normally, couples living together rarely need to divide common assets during the marriage. With the Vietnamese culture of valuing emotions over material things, mentioning the separation of common property will easily cause the other party to misunderstand that the spouse is having emotional problems, and the marital relationship may be affected.
Second, in some cases, one spouse may be forced to request the separation of common property during the marriage in order to preserve the family’s assets (in case the other spouse is wasting the family’s assets).
- For example: Ms. A's husband, Mr. B, has a passion for gambling and betting on football. After many times of persuasion, Mr. B did not listen, and the family's assets gradually decreased. At that time, for the purpose of ensuring the care of the children and the families of both sides, Ms. A decided to request the Court to divide the assets during the marriage.
Finally, in addition, for some young couples who are often exposed to Western culture with more open-minded thinking, the separation of common property during marriage may also be more acceptable. The purpose of dividing common property is to create a certain financial independence, so recognizing profits and income arising from separate property as separate property will be consistent with the wishes of the parties. Such a separation of property will force both parties to be more responsible for their property, avoiding income depending on one person. From there, it will increase equality between husband and wife in the family.
Consequences of property separation in marriage
It must be affirmed that dividing common property during marriage does not change the property regime between husband and wife. Even if the husband and wife divide all common property, the property regime of the husband and wife is still the property regime according to law. The separation of common property during marriage only changes the form of ownership from common to separate for certain properties. The remaining properties not included in the agreement are still jointly owned by the husband and wife.
The common property of the husband and wife is open in nature, as long as the marriage still exists, that property will continue to arise and change. Therefore, even in the case of a husband and wife dividing all common property, it will not change the property regime in the future.
Form of property ownership after separation of common property during marriage
The consequence of dividing common property during marriage is that the divided property, profits, and income arising from the separate property of each party after dividing the common property is the separate property of the husband and wife unless otherwise agreed by the husband and wife. The remaining undivided property remains the common property of the husband and wife.
The following assets will become the separate property of the husband and wife as a result of dividing common property during the marriage, including the divided property; profits and income arising from that property; profits and income arising from other separate property of the husband and wife.
For the divided property that generates profits and income, these profits and income also belong to the separate property of one party. Obviously, the general rules on the composition of the common property and the separate property of the husband and wife have changed. The event of dividing common property during the marriage makes a part of the property that would have been common property now become separate property.
It should also be noted that this consequence only applies to the profits and income arising after the separation of common property, the profits and income that existed before that still belong to the unified common ownership and are not removed from the common property and added to the separate property.
Regarding income from labor, production, and business activities, from the time the separation of the couple’s common property takes effect, if the property is obtained from the exploitation of the husband or wife’s separate property and it cannot be determined whether it is income from labor, production and business activities of the husband or wife or the profits or income arising from that separate property, it shall be the common property of the husband and wife”.
Thus, income from labor, production, and business activities is always under unified common ownership, regardless of whether it comes from separate property or common property.
The event of dividing common property during the marriage does not affect the form of ownership of this group of properties. The above provision is also consistent with the principle of legal inference: property that cannot be proven to be the separate property of one party shall be the common property of the husband and wife.
- For example: If the wife's parents left her a house for rent with a monthly income of 25 million VND. While being a housewife, she does another job such as selling things online, the profit from that business will be determined as joint property, if she cannot prove that the capital she spent on the business is the money she took from the income from the rental house.
Property rights and obligations between husband and wife and third parties after separation of common property
The agreement on property separation does not change the property rights and obligations established before the effective date of the property separation. Specifically, the property rights and obligations between the husband and wife and a third party that arose before the effective date of the separation of common property are still legally valid, unless the parties have agreed otherwise.
- For example: In the case of the husband who has a habit of gambling and owes money to others. We call that a third party involved in the property transaction between the wife and her husband. If the loan transaction was made before the husband and wife agreed on the property separation, she would still have to fulfill the obligation to repay the debt with the property and the profits from the house rental.
The effective time of the separation of common property during marriage
The effective time of separation of common property during marriage is stipulated as follows:
- The effective time of separation of common property of spouses is the time agreed upon by spouses and recorded in the document;
If the document does not specify the effective time, the effective time is calculated from the date of making the document.
- In case the property is divided and according to the provisions of law, the transaction related to that property must comply with a certain form, the separation of common property of spouses is effective from the time the agreement complies with the form prescribed by law.
- In case the Court divides the common property of spouses, the separation of common property is effective from the date the judgment or decision of the Court takes legal effect.
Can the agreement on the separation of common property during marriage be canceled?
The agreement to divide common property during the marriage is an agreement between two people, so both have the right to agree to terminate the validity of the separation of property without confirmation from the Court, except in cases where the separation of common property during the marriage is carried out according to a valid judgment or decision of the Court, the agreement to terminate the validity of the separation of common property must be recognized by the Court.
The property that the husband and wife have been divided is still the separate property of the husband and wife; the property rights and obligations arising before the termination of the validity of the separation of common property are also still valid unless the parties have agreed otherwise.
In addition, current law also stipulates the restoration of the common property regime of spouses. Accordingly, in case a couple has divided their common property and then wants to restore the common property regime, the couple must reach a written agreement and clearly state the following contents: the reason for restoring the common property regime, the property owned separately by each party, the property owned separately by the couple, the effective time of the restoration of the common property regime, etc.
To learn more about other marriage procedures, visit thele.blog for more details.
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