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 partners on behalf of a company and from the business activities conducted by the unlimited liability partners in their personal names; and
  • Other properties as prescribed by law.

These properties are completely separate from the private properties of the members of a partnership. As a rule, members of a partnership take responsibility for transferring the ownership of the assets, contributed as capital to the partnership at a competent State authority, or via a delivery method accompanied by a written document depending on the type of asset. As a result this means that the partnership will be the owner of the capital contribution assets.

When the spouses divorce and divide their common properties, their properties in the partnership are no longer their common properties because the spouses are not owners of these properties, hence, there is no legal ground for division.

However, in the occurence where the other spouse proves that the properties contributed as capital to the partnership were taken from the common properties of the spouses, the spouse who is not a partner to the partnership will be paid by the partnership member spouse with a part of the value of properties he or she is entitled equivalent to the part of the value of assets contributed to the partnership at the time of division. In such a case, the properties cannot be divided by the donation of capital contributions for a non-unlimited liability partner to become an unlimited liability partner of the partnership because of the reciprocal nature of the partnership.

It should be noted that, members in the partnership shall also be known as capital contributing partners and the spouse, in this case, is the capital contributing partner. The common properties of the spouses could be decided in accordance with the part of the capital contribution of the partnership by the way mentioned above. The common properties of the spouses may also be decided by donating the corresponding to the part of capital contribution of the partnership to a spouse who is not a capital contributing partner in the partnership. Through a donation, such spouse shall become a new capital contributing partner. The Law on Enterprises 2014 does not stipulate that the donating capital contribution has to be approved by the Board of partnership members. Thus, this is also a feasible solution in dividing common properties of the spouses in which one of them is a capital contribution partner.

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