What types of tangible and intangible properties do the common properties of the spouses include?
First of all, there is a general understanding of what property is. As clearly defined in the Civil Code 2015, property comprises objects, money, valuable papers, as well as property rights[4]. According to physical characteristics, the property can be divided into two forms: tangible and intangible. All objects, money, valuable papers, real estate, and movable property which can be taken, held or seen are qualified as tangible property. In contrast, property rights (including property rights to intellectual property objects, land use rights[5], debt collection rights,[6] and other property rights) are intangible (invisible) property.
From the legal aspect of marriage and family, the common properties of spouses must be properties in accordance with the Civil Code 2015. Thus, it can be classified into tangible property or intangible one, depending on the type of properties whether they be objects, money, valuable papers or property rights. According to the Law on Marriage and Family 2014, the common properties of the spouses includes[8]:
- Properties created by a spouse, income generated from labour, production and business activities;
- Yields and profits arising from separate properties, except the case where the yields and profits arising from the separate properties after the spouses divide their properties during the marriage period and there is no agreement that such yields and profits are the common properties of the spouses;
- Properties jointly inherited by or given to both, and other properties agreed upon by the spouses as common properties; and
- Other lawful incomes of the spouses during the marriage period, including:
Bonuses, lottery prizes and allowances, except allowances or incentives receivable by a spouse as prescribed by the law on preferential treatment towards individuals with meritorious services to the revolution and other property rights associated with the personal identification of a spouse; and
Properties for which the spouses are entitled to a right of ownership in accordance with the law; and other lawful incomes [10].
Will property rights to intellectual property objects such as copyrights, rights to buy shares, memberships in social and professional associations, right to promise to buy, sell, and benefit in any third party’s testament formed during the marriage period be considered as the common properties of spouses?
- Property rights to intellectual property objects such as copyrights during the marriage period
According to the applicable Law on Marriage and Family, a spouse’s separate properties are equivalent to the property rights to intellectual property objects[12]. However, in fact, when applying this regulation, many issues have not yet been dealt with. The specific situation is as follows:
During the marriage period, Ms. X composed 50 poems and published them into a book. Ms. X became a celebrity and received a lot of royalties since many of her poems have been set to music. Once Ms. X became famous, conflicts of the family arose which led to divorce by mutual agreement but having property dispute. In the view of Mr. Y, they are common properties of the spouses because while Ms. X was writing her poems during their marriage period, he was forced to replace her in some family responsibilities such as taking care of their children. From such arguments, Mr. Y wants to share 50% of the poems written by Ms. X during the marriage period as well as royalties and other income arising from her works. Ms. X disagrees with Mr. Y’s opinion, because she thinks that her 50 poems constitute literary work, that consequently her intellectual properties and that associated with her personal identification. She also added that her choice to spend her free time composing did not affect the family chores.
The above case is settled by a competent Court and there are two points of view for this resolution:
For the first point of view: Do not accept Mr. Y’s request. Currently, there is no legal document which stipulates that the literary works created during the marriage period are the common properties of the spouses. According to the Law on Intellectual Property, Ms. X’s work will be protected by copyright, including royalties, rights of remuneration when the work is used, the right to receive material benefits from having the works used by others in certain forms, and the right to receive awards when any work wins a prize.
For the second point of view: Only accept a part of Mr. Y’s request. From the aspect of the properties, amount of money generated from the works such as royalties as well as other arising profits can be considered as the income arising during the marriage period. Under Article 33 of the Law on Marriage and Family 2014, the income generated from labour activities during the marriage period is obviously the common properties of the spouses[14].
Of the two opinions above, the second opinion seems to make more sense, since the property rights to intellectual property objects are the separate properties of the spouses. Hence, property rights in copyright for literary works are Ms. X’s separate properties. She may exploit and use her literary work to receive royalties, remunerations and other material benefits in accordance with the Law on Intellectual Property. However, profits from a spouse’s separate properties equal to the profits he or she made from exploiting his or her separate properties[16]. Accordingly, the profits that Ms. X has made from the exploitation of the property rights can be considered as the profits arising from her separate properties. Thus, these profits, because of generating during the marriage period, shall be considered as the common properties of the spouses in accordance with the Law on Marriage and Family 2014.
2. Rights to buy shares formed during marriage period
Rights to buy shares may arise in any of the following circumstances:
The person having the rights is owning shares of the share issuing company; and
The person has priority to buy shares due to his or her personal characteristics, talent, prestige, skills, etc.
In case (a), if the origin of the number of shares purchased is from a spouse’s separate properties, the right to buy shares, a property right, is considered as his or her separate properties because it is formed from private properties. Conversely, if the origin of the shares purchased is the spouses’ common properties of the spouses, according to the above analysis, the right to buy shares is the common properties of both spouses.
In case (b), since the right to buy shares arises only due to the spouse’s personal characteristics, this right can be regarded as the property right associated with the spouse’s personal identification. Therefore, the right to buy shares is another separate property of a spouse[18].
3. Memberships in social and professional associations formed during marriage period
Regarding membership in social and professional associations, it needs to be determined whether these memberships can be valued monetarily or not. If monetary value is possible, the rights arising from memberships shall be considered as property rights[20] associated with the spouse’s personal identification. In such a case, memberships in social and professional associations can be considered as a spouse’s private properties.
4. Right to promise to buy, sell, and benefit in any third party’s testament formed during the marriage period
Benefits in any third party’s will formed during the marriage period can be regarded as the right associated with the beneficiary’s personal identification and be such spouse’s separate properties.
Today, one of the most common types of transactions which is not yet regulated by the law is the right of promise to buy or sell. These transactions have not been prohibited by the law, so in fact these take place a lot and the rights to promise to buy or sell arise from there. This is considered to be a right entailing payment for the transfer of properties. However, the determination of whether the right to promise to buy or sell the common properties of the spouses during the marriage period exists, will depend on the object promised to buy or sell. For example, if the object is a house formed during the marriage period and under common ownership of the spouses, the right to promise to buy or sell depends on the common properties of the spouses and vice versa. Notwithstanding this particular case where the object is the property formed during the marriage period and under a spouse’s private ownership, the yields and profits from such separate property are the only living source for the family. The disposal of such property must be agreed upon by both the spouses[22]. From this, it can be understood that if the object of the agreement for the promise to buy or sell is a spouse’s separate property during the marriage period and that the yields and profits from that this separate property is the only source of family income, the owner’s rights will be limited.
Will yields and profits arising from a spouse’s separate properties during the marriage period be considered as common properties of the spouses?
In principle, yields and profits generated from the separate properties of the husband or the wife during the marriage period are determined to be the common properties of the spouses. However, in the case of the division of the common properties of the spouses during the marriage period, yields and profits from the divided common properties will be the separate properties of that spouse, unless otherwise agreed by the spouses[24].
Currently, the establishment of the matrimonial property regime agreed by the spouses is increasingly popular in society. This agreement must be made before the date of marriage registration certificate, and one of its basic contents is to identify the common and the private properties of both the spouses[26]. Therefore, yields and profits arising from separate properties during the marriage period may be separate or common properties of the spouses subject to this agreement.
Will properties formed from the yields and profits, arising from a spouse’s separate properties during the marriage period, be considered common properties of the spouses?
In the above matter, if yields and profits are considered as tier 1 properties, formed from separate properties, the properties formed from the yields and profits arising from a spouse’s separate properties during the marriage period shall be considered as tier 2 properties. According to the current Law on Marriage and Family, yields and profits arising from separate properties during the marriage period are common properties[28]. Therefore, it can be understood that any properties formed from the common properties during the marriage period shall be the common properties of the spouses, i.e. properties formed from yields and profits generated during the marriage period from such separate properties are considered as common properties.
Currently, the law allows spouses to divide the common properties of the spouses during
their marriage period. Accordingly, from the time when the division of common
properties of the spouses takes effect, properties gained from the exploitation
of separate properties of a spouse which cannot be determined as yields or profits
from such separate properties must be under the joint ownership of spouses[30]. Thus, it can be concluded that, when dividing properties
during the marriage period, the properties formed from the yields and profits originating from each person’s separate properties are the separate
properties.
[4] Article 105 of the Civil Code 2015.
[5] Article 115 of the Civil Code 2015.
[6] Article 450.2 of the Civil Code 2015.
[8] Article 33 of the Law on Marrige and Family 2014.
[10] Article 9 of the Decree 126/2014/ND-CP.
[12] Article 11.1 of the Decree 126/2014/ND-CP.
[14] Nguyen
Thi Huyen, “Are literary works considered common properties of husband and
wife?”, the People’s Court of Thua Thien – Hue Province
http://hvta.toaan.gov.vn/portal/page/portal/tandtc/baiviet?p_page_id=1754190&p_cateid=1751909&article_details=1&item_id=51955772
[16] Article 10.2 of the Decree 126/2014/ND-CP.
[18] Article 11.3 of the Decree 126/2014/ND-CP.
[20] Article 115 of the Civil Code 2015.
[22] Article 44.4 of the Law on Marriage and Family 2014.
[24] Article 14.2 of the Decree 126/2014/ND-CP.
[26] Article 48.1.(a) of the Law on Marriage and Family 2014.
[28] Article 33 of the Law on Marriage and Family 2014.
[30] Article 14.3 of the Decree 126/2014/ND-CP.
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