Currently, in many cases of divorce, it is quite difficult to handle requests on property separation during the marriage period when it comes to money and jewelry given to the groom and bride by their families, relatives, and guests at the wedding. The fact is that no legal document provides guidance on this matter. The viewpoint of the Council of Judges of the Supreme People’s Court as stated in the Resolution No. 01/NQ-HDTP dated from 20 January 1998 is that wedding jewelry which any giver clearly indicates is to give to the groom or bride is identified as his or her separate properties and one which any giver clearly indicates is to give to both groom and bride is identified as common properties of the spouses. However, this guiding document is no longer effectively applicable. In fact, it is extremely difficult to determine the will and wishes of the givers. Considering that the givers do not always know and clearly state their will and wishes during the wedding ceremony, the Court shall face many difficulties in determining the truth of the matter in case of a dispute. There are also cases where the givers or witnesses may forget or their will may change, resulting in testimonies which are not consistent to their original intent.
Wedding customs and traditions amongst different regions in our country are different but in general, there are also some common features. Accordingly, the wedding is held on the bride’s side first, then the groom’s side organises the wedding procession at the bride’s house as well as the wedding ceremony at his house. Before the formal wedding ceremony, there will be procedures such as wedding challenges, and marriage proposals (depending on each ethnicity). As a result, the groom’s side has to meet the requirements of the bride’s side for certain gifts (usually properties) to marry the bride. Therefore, offering of gifts by the groom’s side to the bride’s side is legally an act of giving properties to only the bride, and such properties are determined to be the wife’s separate properties. Depending on each region, when the wedding takes place at the bride’s house, the groom will be present or not, and the relatives of the bride’s family will give gifts to her. Thus, the amount of given properties during this period is classified as the wife’s separate properties, whether or not the spouses have registered their marriage.
Quan hệ hôn nhân bắt đầu kể từ ngày vợ chồng đăng ký kết hôn và việc tổ chức lễ cưới hay tiệc báo hỷ chỉ là hình thức theo phong tục tập quán của Việt Nam chứ không ảnh hưởng đến thời điểm xác lập quan hệ hôn nhân theo quy định của pháp luật. Trên thực tế, việc tổ chức lễ cưới hay tiệc báo hỷ có thể trước hoặc sau thời điểm đăng ký kết hôn và lễ cưới hiện đại ngày nay có thể được tổ chức tại các điểm dịch vụ nhà hàng tiệc cưới, nơi mà họ hàng thân thích cả hai bên vợ chồng có thể tặng quà cho vợ hoặc chồng hay cả hai vợ chồng. Do đó, theo quan điểm riêng của tác giả, căn cứ trên những phương thức xác định tài sản chung và tài sản riêng của vợ chồng trong thời kỳ hôn nhân, tác giả xác định các tài sản này dựa trên các khả năng được phân chia sau đây:
The marital relationship starts from the date the spouses register their marriage and the organisation of a wedding ceremony or a wedding party is just a part of our customs and traditions but has no impact on the time of establishment of the marital relationship as stipulated by law. In fact, the wedding celebration may occur before or after the date of marriage registration, additionally modern weddings can now be held at wedding restaurants, where their relatives can give gifts to either or both spouses. Therefore, from the authors’ point of view, based on the methods of determination of the common properties and the separate ones of the spouses during the marriage period, the properties are determined based on the following possibilities:
In the event that a wedding ceremony or a wedding party is held before the date of marriage registration, the spouses’ relationship still does not equal to that of a groom and bride as prescribed by law. Property regime at this time is still a separate regime for each person so gifts on the wedding day can be identified as the separate properties of either the bride or groom. However, if the giver declares clearly that the gift is given to both of them, each person shall be entitled to 50% of the gift value; and
In the event that a wedding ceremony or a wedding party is held on the same day or after the date of marriage registration, the bride and the groom have established a marriage relationship in accordance with the law. Therefore, the determination of the spouses’ properties during the marriage period is based on the basic principles of the Law on Marriage and Family. The properties separately given to a spouse during the marriage period is such person’s separate properties, unless otherwise agreed by the spouses regarding their property regime before or after the date of marriage registration. As a result, the gifts separately given to either the groom or the bride on the wedding day will be a spouse’s separate properties. However, the gifts which when received clearly indicated that they were given jointly to both spouses shall be the common properties of the spouses.
Of note, generally in the Court’s process of resolving civil cases but particularly in divorce cases, the spouses must prove that their requests are legitimate and grounded. Therefore, if the bride or the groom requests the Court to determine that the gifts received on their wedding day are his or her separate properties, evidence must be provided to substantiate the claim. The spouse may substantiate the claim by providing the Court with audio and video recordings of the gift received during their wedding ceremony or wedding party or by requesting the Court to summon the relevant witnesses, etc.
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