The division of the common properties of the spouses shall be conducted if both spouses wish to separate their common properties and still have a matrimonial relationship. This constitutes the spouses’ basic right during the marriage period which is recognised and protected by law. If the spouses want to divide their common properties during their marriage period, this can be done by one of the following methods[2]:
- When the spouses voluntarily agree to divide a part of or the whole common properties of the spouses, they must make an agreement on common property division during the marriage period. This agreement shall be notarised at the spouses’ request or as prescribed by law. For example, in case the object divided is real estate, then the agreement shall be notarised; and
- At the request of a spouse, a Court shall settle the division of common properties of the spouses during the marriage period.
After establishing an agreement on common property division, depending on each specific case, the effective date of this agreement may be determined as follows[4]:
- If the spouses voluntarily agree on the effective date and to specify this time in the agreement on common property division, the validity of this agreement will be based on the spouses’ agreement. If such time is not stated in the written agreement, it shall be the date of making the agreement.
- For divided properties whose transactions must follow the prescriptions of the law as required, the agreement on common property division of the spouses shall take effect from the time that compliance of the division agreement satisfies the formal requirements prescribed by law. For example, when divided propery is land use right or the house ownership right, the registration procedure is required by law. Therefore, the effective time of such agreement of common property division is calculated from the date of completion of such required procedure in accordance with the law; and
- In case spouses request their common properties during the marriage period to be divided by a Court, the division shall take effect on the legally effective date of the Court’s judgement or decision.
However,
in the agreement on common property division, the spouses cannot agree that
other properties formed from the effective time of such agreement or from
another timeline onwards will be the separate properties of the creator. Due to
the nature of common property division, the divided objects must correspond to the specific common properties of the spouses. In such agreement,
the spouses are entitled to divide one, more
or the whole common properties. However,
such common properties must be real and identifiable (whether existing or not
yet formed but will certainly be formed in the future). If the spouses wish to
determine which common properties formed during the marriage period will be
their common properties and which one will constitue his or her separate properties, such agreement
must be made in writing before the marriage registration and be notarised or
certified [6].
[2] Article 38 of the Law on Marriage and Family 2014.
[4] Article 39 of the Law on Marriage and Family 2014.
[6] Article 47 of the Law on Marriage and Family 2014.
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