Divorce procedures not only involve personal matters but also encompass asset division. So, how is the division of marital property conducted?
With extensive experience in Family and Marriage consultancy, Law Plus provides Clients with fundamental regulations on asset division upon divorce as per current law.
Table of Contents/Mục lục
I. METHODS OF DIVISION
1.1. Order of division
According to Article 59 of the Law on Marriage and Family 2014 and Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP: When divorcing, spouses have the right to agree on all issues, including asset division. If the spouses cannot reach an agreement on asset division, the Court will consider and decide on the application of the marital property regime to handle the division. The marital property regime can be agreed upon or statutory.
a. Applying the agreed marital property regime to divide assets
During the marriage, if the spouses have the agreement and establish a marital property regime by agreement, and the Court has not declared that the agreement is entirely invalid, this agreement will be applied to divide the spouses’ assets. The spouses can self-divide their assets without court litigation.
If the spouses have the agreement and establish a marital property regime by agreement, but the agreement is unclear or incomplete, the Court has the authority to apply the statutory property regime (analyzed in section b) to resolve the division based on Clause 1, Article 59 of the Law on Marriage and Family and Point b, Clause 1, Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP. Additionally, if the spouses establish the property division agreement but this document is declared invalid by the Court, the statutory property regime will be applied (analyzed in section b) to resolve the division based on Point a, Clause 1, Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP.
Moreover:
If during the marriage, the spouses.do not establish an agreed marital property regime.but can agree on asset division during court.proceedings, the Court will prioritize applying.this agreement to resolve the division.
From the above analysis, the law.respects and prioritizes the spouses’ self-agreement.or the existing agreement on the marital property.regime to resolve the division. However, the law does not recognize and enforce all agreements or documents.establishing the property regime of.spouses. Self-agreement or applying.the agreed division regime must ensure.the form and content are not contrary.to the law (freedom to agree within.the legal framework).
b. Applying the statutory marital property regime to divide assets
For issues that are not agreed.upon by the spouses or the agreement is unclear or invalid, the Court applies.the corresponding provisions in Clauses 2, 3, 4, and 5,.Article 59 and Articles 60, 61, 62, 63 and 64.of the Law on Marriage and Family to.divide the spouses’ assets upon divorce.
1.2. Assets to be divided
During the marriage, spouses can have common.and separate assets. Thus, the assets to be.divided upon divorce are the common.assets of the spouses, as stipulated in Article 33 of the.Law on Marriage and Family. Additionally, these assets also include separate assets of either spouse.that have been integrated into the common assets.as per the Law on Marriage and Family.
The separate assets of a spouse (as stipulated.in Article 43 of the Law on Marriage and Family) belong.to that person. Proving privately inherited and donated property during the marriage requires.sufficient and clear evidence.
Note:
When applying the statutory marital property.regime to divide the spouses’ assets upon divorce, the common assets are in principle divided.in half, but the following factors are considered to determine the proportion of assets.each spouse receives, based on Clause 4, Article 7 of Joint.Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP:
- The circumstances of the family and each spouse;
- The contributions of each spouse to the creation, maintenance, and development of the common assets. This provision aligns with the purpose of marriage, which is for spouses to accompany, contribute, and share responsibilities in all aspects of life;
- Protecting the legitimate interests of each party in production, business, and professional activities to allow both parties to continue working to generate income;
- The faults of each party in violating the rights and obligations of the spouses.
Upon divorce, the Court only divides the common assets between the spouses. However, children can still receive assets if the parents agree to allocate assets to them or if the children co-own assets with their parents.
II. PROCEDURE FOR REQUESTING ASSET DIVISION
The procedure for requesting the Court to divide the common assets upon divorce is as follows:
Step 1: Submit the application at the District People’s Court where the spouse resides
The application requesting asset division includes:
- Divorce petition specifying the request to divide the common assets;
- Marriage certificate or an excerpt (Original);
- Birth certificates of the children, if any (Certified copies);
- Household registration book (Certified copy);
- Certified copies of personal documents: Identity Card/Citizen identification/Passport of the spouse;
- Certified copies of Documents proving the common assets of the spouses;
For example:
- Certificate of land-use rights and ownership of house and other property on land; Vehicle registration certificates; etc.;
- Other related documents and evidence.
The applicant can apply directly or via postal service.
Step 2: The Court reviews the application
If the application is valid, the Court issues a notice about the payment of the court fee advance. The applicant fulfills the obligation to pay this fee.
Step 3: The Court accepts the case
After accepting the case, the Court prepares for the trial within 4 months from the date of acceptance.
Step 4: Bring the case to trial
The judge opens the first-instance trial. The Court’s Judgment and Decision will be legally effective if there is no appeal or protest within the statutory period.
The above are the current regulations on asset division between spouses upon divorce. Properly resolving the division of common assets upon divorce helps avoid future asset disputes.
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