Question: How to determine which properties of husband and wife are joint or separate to prevent any disputes about ownership as disposing of.
Answer:
According to the Law On Marriage And Family on the regime of matrimonial property, husband and wife have the right to chose to apply the statutory or agreed property regime.
In case husband and wife select to make an agreement on property regime, this agreement shall be made in writing before their marriage and be notarized or certified.
Husband and wife need to discuss and agree on matters relating to the properties of each person during the marriage period. These matters include:
a/ Property determined such as joint property and/or separate property of the husband and/or wife;
b/ Rights and obligations of the husband and wife toward joint property, separate property, and related transactions; properties to meet the family’s essential needs;
c/ Conditions, procedures, and principles of the property division upon termination of the property regime;
d/ Other related contents.
The agreed matrimonial property regime shall be effected on the date of marriage registration.
In case the agreement on matrimonial property regime applies within the marriage period, husband and wife have the right to amend or supplement part or all content of that agreement or to apply the statutory property regime. The amendment and/or supplement of the matrimonial property regime must be notarized or certified according to the applicable law.
The agreement on the amendment and/or supplement of the matrimonial property regime shall be effected on the date of notarization or certification. Husband and wife have obligations to offer this related content of the agreement on matrimonial property regime to the third party.
Husband and wife may ask the support of the lawyer for drafting the agreement on the matrimonial property regime. The necessary materials shall be the basis in order to draft the agreement, such as:
- Copies of the certificate of land use right, house ownership, and other properties associated with the land and the copies of documents proving the ownership to other properties which must be registered.
- Other documents prove which properties belong to husband and wife.
- The core contents of the agreement on the property regime are agreed upon.
In case the husband and wife have no agreement on the matrimonial property regime, the regime shall apply according to the applicable law on joint and separate property.
Joint property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property, and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as joint property.
The land-use rights obtained by a spouse after marriage shall be the joint property of husband and wife unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.
Joint property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife. When exists no ground to prove that property in dispute between husband and wife is his/her separate property, such property shall be regarded as Joint property.
Separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.
Property created from the separate property of a husband or wife is also the property of his/ her own. Yields and profits arising from the separate property during the marriage period must become Joint property.
Thus, husband and wife must strictly comply with the applicable law on the determination and deposition of Joint and separate property in order to prevent any disputes on property ownership.
