In marriage, the division of property between a husband and a wife is a sensitive issue. This is the main reason leading to the difficulty for the Court in determining a separate and common property of spouse when settling divorce cases. With the question was raised at the topic of this article, Case Law No. 03/2016/AL being approved by the Judicial Council of the Supreme People’s Court on 06 April 2016 (“Case Law 03”) provided opinions of competent authorities on the above matter.
Through this article, BLawyers Vietnam would like to analyze Case Law 03 underneath.
- Definition of common property of a spouse
According to the law, the common property of a spouse 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 earning during the marriage period, except in the case of division of common property during the marriage period;
- Property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.
Of note, the land use rights obtained by a spouse after marriage are common property, unless they are separately inherited, gifted, or are obtained through transactions made with separate property.
- Summary of the contents of Case Law 03
Mrs. H and Mr. N got married in 1992, and during their marriage, conflicts arose. In 2009, Mrs. H filed a divorce petition against Mr. N and Mr. N consented. While living together, Mr. N and Mrs. H built a house on the land. The husband and wife agree that the house is common property, however, the parties failed to agree on the land. According to Mrs. H, this land was granted to her father-in-law (Mr. P), then Mr. P and his family met and declared that they gifted the land to the couple, but no documents were written. In 2001, Mr. N completed the procedures and was granted a land use right certificate in his name. Mrs. H confirmed that such land use rights are the common property and requested to be paid ½ of the value of the land use rights and assets attached to the land.
However, Mr. N disagreed and claimed that his parents only allowed them to temporarily live there and did not gift them the land use right because Mr. P had many children. In 2001, he declared and implemented procedures for land documents by himself without his family’s realization. Therefore, Mr. N proposed that the land be returned to Mr. P.
In the first instance judgment No. 03/2011/HNGD-ST dated 17 May 2011, the People’s Court of TT District decided regarding the common property of Mrs. H and Mr. N as follows: clarifying that the house was recognized as the common property, and the disputed land use right belonged to Mr. P’s household. The court forced Mrs. H and Mr. N to return the land use rights to Mr. P’s household.
Mrs. H disagreed and filed an appeal petition, however, in the Appellate Judgment No. 105/2011/LHPT dated 30 August 2011 and 06 September 2011 the People’s Court of HN upheld the first-instance judgment.
After the appellate hearing, Mrs. H continued to submit a petition to propose cassation procedures for appellate judges. The Supreme People’s Court Cassation Council has issued a judgment based on the following legal factors:
- According to verification at the Commune People’s Committee, in 2001 the Commune People’s Committee organized the households in the commune to register for issuance of LURCs. All households in the commune were aware of the policy for the land declaration, Mr. P was the owner of the land, but he did not make the declaration. Mr. N is a person living on land who has declared and implemented the procedure for granting LURC.
- Mr. N and Mrs. H built a solid 2-story house and then built 3rd story, which shows that Mr. N and Mrs. H have a long-term purpose beyond simply living on the land.
- Mr. N and Mrs. H have lived permanently on the land plot for 16 years, but Mr. P’s family has not complained regarding the land grant and house construction.
Therefore, Mr. P’s and Mr. N’s testimonies that Mr. N declared the land documents without Mr. P’s realization have no basis for acceptance. There is a basis to determine that Mrs. H’s testimony about Mr. P’s family giving the above land to Mr. N and Mrs. H. Therefore, the appellate and first instance judgments were annulled.
In addition, Case Law 03 clearly states that it is necessary to determine that the disputed land area is the common property of Mrs. H and Mr. N. And when dividing the property, it is necessary to consider the origin of the land (given by the parents-in-law) to determine the contribution of Mr. N. It must consider that Mr. N has contributed more. Besides, it is necessary to divide the objects among the parties based on the need for accommodation to ensure the interests of the involved parties.
Case Law 03 also shows that the parties need to pay attention to the evidence identifying common property between the spouse and the gift of property. The parties should proceed to make a written agreement to avoid unnecessary trouble.
- Applying Case Law 03 to similar cases
- In case the parents-in-law give their daughter, the son-in-law can still apply Case Law 03 to protect his interests;
- In the case where the parents give their son and the person living with their son as husband and wife a property, this person can use Case Law 03 to determine that this property a shared property; and
- Case Law 03 can be applied to cases where it is not land use rights but apartments, construction works, …
In summary, the content of Case Law 03 is consistent with applicable laws and practices. Because in fact, not all the willingness to give is expressed in writing but also in behavior. Therefore, in the case of a dispute over the property during the divorce process, one party can apply the content of this case law to protect their interests.
For further information, please contact:
Minh Ngo Nhat, Managing Partner, BLawyers
minh.ngo@blawyersvn.com
