Ownership matters are always discussed in marriages and family relationships, particularly the assets that parents give to their children after marriage. In fact, it is common for parents to gift assets to their children individually, but disputes arise when a married couple divorce and divide their joint and separate assets. So, what matters should be considered when parents give assets to their children separately after their marriage?
Through this article, BLawyers Vietnam would like to present the issues to consider when parents gift assets to their children individually after marriage.
1. What are the common assets, separate assets of the spouses?
Common assets of the married couple during the marriage period are the assets formed from the time the two parties register the marriage excluding assets gifted separately, individual inheritance, or assets acquired from separate assets before the marriage period. The common assets of the spouses include assets created by the spouse, incomes generated by labor, production and business activities, yields and profits arising from separate assets and other lawful incomes during the marriage period, assets jointly inherited by or given to both, and other property agreed upon by husband and wife as common assets.
Separate assets of the spouse include assets owned by this person before marriage, the assets inherited by or given separately to him/her during the marriage period, the assets divided separately among the spouses, the assets that serve the essential needs of the spouse and other assets under his/her ownership as prescribed by law. Assets created from separate assets of a husband or wife are also assets of his/ her own.
2. Are the parent’s assets given to the children after marriage considered the common assets or the separate assets of the spouses?
If there are reasonable grounds, documents proving that the assets are given by the parents to the spouse, or the assets given by the parents to their children individually, but the spouses agreed to be common assets, they shall be determined to be common assets of the spouses. Spouses can agree on the possession, use and disposition of common assets.
If there are reasonable grounds, documents proving that the assets are given by the parents to the spouse individually after marriage, they shall be determined to be the separate assets of the spouse. Spouses have the right to manage, possess, use and dispose of their assets, and decide to merge separate assets into common assets.
In the absence of grounds to prove that the assets in dispute between the spouses are the separate assets of each party, such assets will be regarded as common assets.
3. What should be noted when parents give the assets to their children after their marriage?
An asset gift agreement is made through a contract for a gift of assets. Contract for a gift of assets means an agreement between parties whereby the giver delivers its property and transfers its ownership rights to the recipient without requiring compensation and the recipient agrees to accept the gift.
When the parents give their assets to their children individually after marriage, the following issues should be considered to avoid the potential problems or disputes of interests:
(i) Determine who is the gift’s beneficiary
Parents should precisely determine whether to give their assets individually to their children or to both spouses. Identifying this object is significant since if it is not clearly defined, it may cause disputes and conflict between spouses or between parents and children.
Legally, the wishes of parents when making a gift are the factor in determining who has the right to own the property without being bound or affected by anybody else’s desire. If the gift is created based on compulsion, deception, or threat, it will be null and void, with no legal validity.
(ii) The formality of giving
If the object of the contract for a gift of assets is movable assets, the contract for a gift of assets can be oral or written. Unless otherwise specified, the contract for a gift of assets takes effect from the time the beneficiary receives the assets. For movable assets are compulsory for registration of ownership under the law (motorcycles, cars, etc.), the contract for a gift of assets becomes effective at the time of registration.
When parents give real estate to their children, it must be performed in a writing contract for a gift of assets and this contract must be notarized and certified at the Notary Office or the People’s Committee of communes, wards according to the land law and notarization law. If the contract for a gift of assets is made orally, there are insufficient legal grounds to establish ownership of the real estate nor arise the rights of the beneficiary in this case.
(iii) Procedures for giving land use rights to children individually after marriage
To make the gift of land use rights to their children, parents must first create a contract for a gift of land use rights, including a clause stating clearly that the parents give a gift to their children separately.
The procedure consists of the following 03 steps:
- Step 1: Notarizing and certifying the contract for a gift of land use rights at the Notary Office or People’s Committees of communes, wards where the land is located;
- Step 2: Registering the name on the land use right certificate at the Land Registration Office; and
- Step 3: Receiving a land use right certificate in the children’s name.
The aforementioned are some notes for parents who desire to gift assets to their children after marriage to avoid potential disputes.
For further information, please contact:
Minh Ngo Nhat, Partner, BLawyers
minh.ngo@blawyersvn.com
