May 4, 2024

Divorce

Question 75: How does the Court handle the division of the common properties of the spouses which is composed of capital contributions in a multi-member limited liability company or of shares in a joint stock company of the spouses who could not reach an agreement? Shall the Court assign all the rights of capital contribution or shareholder rights to the spouse who is named in the enterprise registration certificate or shareholder book of the enterprise and that person must pay cash to the other person or will divide and give it to both spouses according to the percentage decided by the Court? Does this division mean a division of company assets, capital contributions or shareholders’ rights of the spouses in the enterprise?

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According to the principle as set out in Article 33 of the Law on Marriage and Family 2014 determining the common properties of the spouses, the properties created by the spouses during their marital period are considered as their common properties. Therefore, shares in a joint stock company or capital contributions in a multi-member limited…

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Question 74: When dividing common properties of the spouses, which belong to the partnership, and how will the division of properties be made? Dividing properties or dividing the remaining value of the company?

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The following properties listed in Article 174 of the Law on Enterprises 2015 are considered as the properties of the partnership.; The ownership of contributed assets as capital by the partners have been transferred to the partnership; Created assets in the name of the partnership; Assets collected from the business activities conducted by unlimited liability…

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Question 73: How will the property division be carried out when dividing the common properties of the spouses as shares in a joint stock company? Are properties or shares divided?

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In the answers to other relevant questions in this Book, it sets out how to divide properties such as a capital contribution in limited liability companies. In this question, in the case of properties being shares in joint stock companies, when dividing the common properties of the spouses upon divorce, the same principles we still…

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Question 72: How are the common properties of the spouses divided in accordance with the law when facing with an issue of portion of capital contribution in a limited liability company whose debt is larger than such company’s current assets?

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In principle, the divorcing spouses are entitled to negotiate on all matters, including the division of properties. In cases where the spouses cannot reach an agreement on common property division, they can submit a request to the Court. The Court will consider and decide to apply the matrimonial regime according to the law (except for…

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Question 71: How is the division of common properties of the spouses processed most adequately if such common properties to be divided are a portion of capial contribution to a limited liability company whose business lines or services are conditional, and where only individuals holding certain occupational certificates are allowed to contribute to it, such as lawyers, doctors, architects, etc.?

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The Law on Marriage and Family does not regulate specifically the division of common properties of the spouses such as a contribution in a limited liability company in conditional business lines requiring certain occupational certificates or kinds of licenses for individuals. Under the principles prescribed by the Law on Marriage and Family 2014 on spouses’…

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Question 70: How will the property division be carried out when dividing the common properties of the spouses as a capital contribution in a multi-member limited liability company? Is “the properties contributed” to the company or “the portion of the contributed capital” in such company divided?

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The capital contribution in an enterprise is the total value of assets contributed or committed to contribute by a member to a limited liability company[2]. According to Article 4.7 of the Law on Enterprises, an enterprise is an organisation with its own properties. The assets of the company acquired in the initial stage after its…

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Question 69: How will the Court handle the movable properties which are common properties of the spouses during the marriage but cannot be divided between the spouses when divorced since it is no longer valid for use in the case of the division (for example, daily household appliances such as irons, fans, air conditioners, cups, chopsticks ect.)?

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Requesting the Court to resolve the common property division of the spouses upon divorce is the right of the spouses. As a rule, the Court cannot refuse to accept any legitimate requests of the people/citizens. During the marriage period, the common properties of the spouses, as defined in the previous sections, include real estate and…

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Question 68: When dividing properties in a divorce case, which separate properties of each spouse is still considered to have formed common properties of the spouses to be divided between the two spouses? In contrast, which properties that were formed during the marriage period are still considered as his or her separate properties?

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When resolving a divorce case, it is complex for the Court to determine the common properties of the spouses and their separate properties during the marriage period for division. Indeed not all properties arising during the marriage period are also considered as the common properties of the spouses and not all separate properties of each…

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Question 67: If a third party makes a transaction with a spouse without being aware that the common properties of the spouses have been divided under an agreement on common property division between the spouses, how would liability arising from the common properties be settled?

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The spouses can select an agreement on the matrimonial property regime based on the principle of freedom and voluntariness together on the establishment and performance of their property rights and obligations[2]. This agreement may be a notarised or certified document such as a marriage proposal, prenuptial agreement or pre-marriage agreement. Some contents of such agreement…

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Question 66: Could a spouse change the content or cancel the agreement on common property division during the marriage period after such agreement takes effect? Is it required to notarise or certify the cancellation of such agreement? Is it necessary to notify the creditors of both spouses? Will the properties previously divided by the spouses become their common properties again or they are still the separate properties of each spouse and only the properties arising from the time of the cancellation agreement of such agreement on common property division be the spouses’ common properties?

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As analysed in the previous section, in order for the agreement on common property division during the marriage period to take effect, this agreement must be made in writing and notarised at a notary practice organisation at both spouses’ request or in accordance with the law. It must also follow certain transaction form as provided…

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