Question 101: In a divorce case, does the spouse have the right to request: (i) the bank to determine the other person who has opened an account at such bank and the account balance; (ii) the property registration office of the district People’s Committee to determine as to whether the other person is the owner of the registered properties; (iii) the business registration office of the provincial Departments of Planning and Investment to check whether the other person is a capital contributor or a shareholder in enterprises? If there is no such rights, can he or she request the Court to help verify, collect such documents and evidence? In which case, can the Court refuse to support the verification, collection of documents and evidence?

Determining specifically which property is held by the wife and the husband in divorce cases is a necessary requirement when the spouse wants to take lawsuit or make a request in a divorce case.

An indispensable condition for a request to be approved by the Court is that the request must be specific and not generic so that the Court can determine it[2]. Therefore, the spouse himself or herself must determine which property is held by the other spouse. Taking petitioning the Court to divide common properties of the spouses which is the house X, at address Y with the value of Z in the husband’s name and the account at bank A, account number B, and account balance C as an example. If the other spouse’s properties have not been determined, he or she cannot request the Court’s approval in divorce cases. For example, if the wife only requests the Court to split all the common properties of the spouses, without determining what the properties include, where the properties are or how valuable they are, then the Court will not accept the request of the plaintiff. Therefore, the plaintiff must identify the above issues by himself or herself before making the request to the Court in divorce cases.

Once the request has been determined and requested the Court to protect, the plaintiff must prove that his or her request is lawful. According to the Civil Proceedings Law, agencies, organisations and individuals are compelled to provide necessary documents and evidence to the spouses in a civil case when that spouse makes a lawful request[4]. However, the request of a spouse to a bank, a property registration office or a business registration office to certify the information regarding whether the other spouse is holding, or owning any property does not fall under the above request. The aim of this request is only to request information. Only when the spouse has acquired specific information and has subsequently made a specific protection request to the Court but that the spouse needs documents and evidence to prove it, then the spouse has the right to request organisations and other individuals to provide such documents and evidence.

In addition, the right of a spouse to request a bank or a property registration office of a district level People’s Committee to provide information is not feasible according to the following analysis:

  • For commercial banks, under the provisions of the Law on Credit Institutions, credit institutions and foreign bank branches shall only provide information to account holders on transactions and balances on their owners’ accounts under prior agreement with the account holders[6].

At the same time, credit institutions and foreign bank branches must ensure the confidentiality of all information related to their customers’ accounts, deposits, deposit assets and transactions[8]. From that ground, it can be understood that if there is no authentication from the account holder on the request for information provision, and no individual or organisation, even the spouse of the account holder is entitled to request any credit institution to provide the information of other owners’ accounts.

There are 02 cases where the bank is allowed to disclose customer information to entities which are not competent State agencies. Firstly, the information may be disclosed to entities which are entitled to request credit institutions and/or foreign bank branches to supply customer information which is specified in the codes, laws and resolutions of the National Assembly. Secondly, there is the customer’s consent in writing or in other forms as agreed upon with the customer[10]. In a divorce case, of course, the defendant spouse, will never allow the bank to provide information about his or her account to support a divorce case initiated by his wife or her husband. Therefore, only in cases provided for by the codes, laws or resolutions of the National Assembly, shall the banks have the responsibility to provide information about the account and the account balance of their customers. However, up to now, except for the above provisions of the Civil Proceedings Code, there is no document issued by the National Assembly stipulating that the spouse will be entitled to request the bank to provide account information of the other spouse in a divorce case. In fact, banks also adhere to this privacy law to protect the interests of their customers.

  • For property registration department of the District People’s Committee

The current property registration does not belong to a specific State agency but is carried out in different agencies depending on the type of properties to be registered. For example, if the property is a land use right, the ownership of the houses and assets are attached to the land, this land use right will be found in the current registry is the Land Registration Office under the Department of Natural Resources and Environment or its branch of Land Registration Office under the district-level People’s Committee. Assets such as motorbikes shall be registered at the district level Police. Assets such as cars are registered at the Police Bureaus of road, rail of the Police at provinces, and cities under central authority level. If the property is a ship, the competent registration authority is the Maritime Port Authorities, Customs Sub-Departments or Vietnam Maritime Administration depending on each particual case. Each property registry agency will manage the information of a different type of registered property. Therefore, there will be no unified property registration office in the organisational structure of the District People’s Committees, nor will it be possible to request a property registration agency to provide information on the different types of properties. Therefore, requesting the property registration office of the District People’s Committee to find property information also faces many difficulties as described above.

In addition, the applicable law does not require the intervention of property registration State agencies in order to determine whether a person is registered as the owner of the properties or not when resolving a divorce case. These agencies are only responsible for providing some information about the registered property when are legally required. For example, the Land Registration Office may provide information about the status of a particular parcel of land, such as whether the land use right A has been distrained or whether it has been used for any security measure. However, it may not have obligation to determine which land Mr. B has the land use right for.

Regarding Business Registration Offices of Departments of Planning and Investment at provinces and cities level, the spouses may request these Departments to provide information about enterprise registration, and financial statements of enterprises that a spouse thinks the other spouse is holding capital contributions or shares in them. In addition to requesting the Business Registration Office to provide the above information, the requesting spouse himself or herself can also verify the information on the National Business Registration Portal. In there, the requesting spouse is provided with information on the latest 03 year business registration certificate, and financial statements and will have to pay the usage fee[13]. However, in a case where the spouse is a shareholder in an unlisted joint stock company, the requesting spouse can only verify the information if the other spouse is the founding shareholder of such joint stock company. If the husband or the wife owning shares is not a founding shareholder, the other spouse will find it difficult to verify the number of shares that the other spouse is holding because this information is only recorded in the shareholder register book of the joint stock company, which is only accessible by company shareholders[14].

In addition, in a divorce case, the requesting spouse is obliged to provide documents and evidence to prove that his or her claim is grounded and lawful. Providing that the litigant could not collect and verify the documents, evidence himself or herself, he or she may request the Court for assistance[17]. Thus, the responsibility to provide the necessary documents and evidence to prove litigants’ request first and foremost are on the litigants. The litigants are required to try their best, but if they still cannot collect the necessary documents and evidence, they can then request the Court for assistance. At the same time, the Court only supports when the litigants prove that they cannot collect such documents and evidence[18]. For example, the wife knows that her husband owns a parcel of land X on map Y at address Z and has repeatedly requested the competent Land Registration Office as well as the local Department of Natural Resources and Environment to certify that her husband’s name is on the Certificate of Land Use Right but there is a written refusal or an absence of response. At that time, the wife will thus be entitled to request the Court to support the collection of evidence as stated above.

[2] Article 189.4.(g) of the Civil Proceedings Code 2015.

[4] Article 7 of the Civil Proceedings Code 2015.

[6] Article 13.1 of the Law on Credit Institution 2010

[8] Article 14.2 of the Law on Credit Institutions 2010.

[10] Article 11 of the Decree 117/2018/ND-CP.

[13] Article 34 of the Law on Enterprises 2014.

[14] Article 121.3 of the Law on Enterprises 2014.

[17] Articles 70.7 and 91 of the Civil Proceedings Code 2015.

[18] Article 106 of the Civil Proceedings Code 2015 and Article 2.1 of the Resolution 04/2012/NQ-HDTP.

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