The validity of the agreement on common property division during the marriage period is determined as follows[2]:
- Firstly, based on the effective time agreed upon by the spouses which is stated in the agreement on common property division during the marriage period;
- Secondly, if such effective time is not stated in this written agreement, it will be the date on which the agreement was concluded by the spouses or that on which the agreement was notarised at a notary practice organisation as agreed by them or as prescribed by law;
- Thirdly, for divided properties for which the transactions must be under a certain form as required by law, the common property division takes effect as soon as the agreement on common property division complies with the formality requirements prescribed by law; and
- Fourthly, for common properties of the spouses divided by a Court, the division takes effect on the legally effective date of the Court’s judgement or decision.
It is worth noting that property rights and obligations between the husband, the wife, and a third party which arise before the effective time of common property division remain legally effective, unless otherwise agreed by the spouses.
After the effective date of the agreement on common property division, the division of the subsequent properties formed after that time is also a matter of concern. One of the issues is that of properties being exploited from the separate properties after such division. In principle, yields (arising naturally from properties) and profits (brought by the properties) arising from the separate properties of each spouse is considered as the common properties of both spouses. However, yields or profits arising from the separate properties of the husband or the wife after the division of the common properties are his or her separate properties unless otherwise agreed by them[4].
In conclusion,
common property division does not affect the statutory matrimonial property
regime. Also, the spouses have the right to agree in writing to terminate the
effect of such division. The form of such agreement must comply with the law[6].
[2] Article 39 of the Law on Marriage and Family 2014.
[4] Article 40.1 of the Law on Marriage and Family 2014.
[6] Article 41 of the Law on Marriage and Family 2014.
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