Sharing of expertise
Question 87: The division of properties in the divorce case of the spouses, especially the real estate and the movable properties which already completed the registration fee according to the requirements of the law, is that required to pay any taxes, fees and charges? How much is the rate of payment?
Currently, the income from the division of common properties of the spouses as real estate upon divorce is agreed upon by the spouses or in accordance with the Court’s judgement. The income from the division of common poperty is entitled to personal income tax exemption according to the Law on Personal Income Tax and its…
Question 86: When resolving a divorce, there are common properties of the spouses that need valuation but the spouses cannot always reach an agreement on the value of the properties and/or the selection of an appraisal property service provider. Does the Court have the right to appoint a third party to provide appraisal property service or is this option only available to the Court if requested by either or both spouses? If the Court is entitled to appoint, upon request, who shall pay this appraisal fee?
The valuation of the common properties of the spouses during the divorce is based on the agreement which is firstly and reasonably unified upon by the spouses, based on the market price at the time of agreement and not aiming at avoiding any other obligations with third parties, including obligations to the State. If the…
Question 85: In the relationship of spouses, shall the right to decide of the creation, possession, use and disposition of common properties of the spouses, be decided by the higher-income spouse if there is, in fact, a significant difference in the income earned by each spouse? Why so?
During the marriage period, the property rights and obligations of spouses towards the common properties of the spouses are equal, irrespective of the properties contributed and created by the spouses during their marital period[3]. Specifically, the common ownership of the spouses is joint ownership – a form of ownership in which the ownership right of…
Question 84: For properties such as real estate or movable properties with the requirement of ownership registration abroad, in order to determine whether those properties are common properties of the spouses for division and the Vietnamese Court could not determine who is the their owners, what can the Vietnamese Court do to verify that ownership?
When the Vietnamese Court is unable to verify owners of a property i.e. real estate or moveable property which is registered overseas, the Vietnamese Court may carry out judicial entrustment procedure. Judicial entrustment is a written request of a Vietnamese competent State authority or a foreign one to carry out one or several mutual legal…
Question 83: During a marriage, if one of the spouses borrows money from one or more third parties and the money is used by such spouse for personal needs that the other spouse is unaware of or even if the other spouse knows about the debt owed, when dividing the common properties, will be the debt owed by the spouses? What if the spouse is not aware that the other spouse has a loan? Or what if a spouse who borrows the money can prove that he or she has used the loan to serve basic needs of the family or buy real estate under the names of the spouses?
Where the spouse borrowed money from a third party and used that money for personal purposes and the other spouse was unaware of the loan and its use, when resolving the division of common properties during the marriage period, the Court shall determine that this is a private debt of the spouse who has borrowed…
Question 82: If the divided properties were real estate being mortgaged for a loan at a commercial bank or credit institution, how should the properties of the spouses be divided?
For the properties that are real estate, being mortgaged for loans at commercial banks when requesting a Court to settle this division of such common properties between spouses in a divorce case, there are 02 cases which need to be considered as follows: Case 01: Both the spouses agree on the mortgage of a loan…
Question 81: Upon the divorce, the house will be assigned to one spouse and the other one shall receive money. However, if he or she has no proper accommodation, does he or she have the right to stay in the house as common properties of the spouses? If it is possible, what is the maximum length of stay? Does he or she have to pay a portion of the house maintenance and the cost of utilities?
According to the provisions of law, as soon as the Court judgement or decision resolving a divorce case takes legal effect, the marriage will be terminated. Relations of the common properties of the spouses also are modified according to the Court’s decision, including real estate which is the house where both spouses live. However, in…
Question 80: When the division of the common properties of the spouses deals with real estate which is mortgaged by a bank and/or currently still being leased to the third party for business/residence at the time of divorce, what are the husband’s and the wife’s obligations towards the bank and the lessee after dividing the properties?
According to the applicable law, spouses have the following common obligations after divorce regarding the obligations arising from[2]: The transactions established under their agreement and their joint liability are prescribed by law; the possession, use and disposition of the common properties; and the performance by a spouse in order to meet the family’s essential needs….
Question 79: If the common properties of the spouses are real estate, according to the Court’s divorce judgement, will they be equally divided between the spouses? Sell the real estate to split? And what if when selling the real estate, one of the two spouses disagrees with the sale price of the real estate? If the real estate is to be handed over to one spouse, on what criteria the assignee is selected, and how will the value of the real estate be determined? Do the two spouses agree on real estate values? What if no agreement betwen the spouses can be made? Is it possible to request a professional expert appointed by the spouses for a valutation? Or based on the land prices announced by the Government annually? Or according to the market price of real estate at the time of division?
For properties being real estate, it may be divided according to the following ways: (i) dividing the real estate between the spouses; (ii) making sale of real estate and dividing the proceeds; and (iii) giving the properties to one spouse and such property receiving spouse must pay the spouse who is not given the properties…
Question 78: Before the marriage, the spouse has a private property such as real estate and after the marriage, the spouses live together in such a real estate, then upon divorce, how will that property be divided?
As a rule, any property which is real estate with a legal ownership right before the marital period is the private property of a spouse. If there was no change in the process before and during the marriage period, which would affect this private ownership, the private ownership status would not change after the divorce….