As analysed in the previous section, in order for the agreement on common property division during the marriage period to take effect, this agreement must be made in writing and notarised at a notary practice organisation at both spouses’ request or in accordance with the law. It must also follow certain transaction form as provided by law if any. Cases of agreement relating to properties are to be notarised as follows:
- Movable properties which must be register for ownership;
- Real estate;
- House ownership rights, rights to use land and properties attached to land; and
- Either spouse wishes to notarise the agreement.
Once the agreement on common property division during the marriage period has taken effect, if the husband or wife wishes to change the agreed contents or to cancel this agreement, he or she shall proceed as follows:
- For such agreement voluntarily made by both spouses, both spouses will make a new agreement and conduct the procedure for the modification at the notary practice organisation which has formerly notarised their property division agreement[2]. If the agreement is not notarised or certified and is not subject to it, the spouses may agree about the amendment or cancellation; and
- If the common properties of the spouses are divided during the marriage period under an effective Court judgement or decision, the agreement of termination of the effect of the agreement on common property division shall be recognised by the Court.[4]
It is noted that when agreeing about the modification, supplementation or cancellation of the agreement on common property division of the spouses, both spouses must notify their creditors and obtain their consent before proceeding to such agreement in certain cases.
For example, A and B are spouses. In their property division agreement, A and B agreed that the car, worth VND500,000,000, was owned separately by A. After such agreement came into effect, A used that car for doing business in technical passenger transportation but suffered a loss. Thus, a pledged the car to pawnshop D (familiar to A) and received VND300,000,000 and pawnshop D did not keep A’s car. Later, at their own discretion, A and B wished to amend such agreement so that the car would be under B’s ownership. Such agreement affected the debt collection right in the respect of pursuing the pledged properties of a pawnshop D. Therefore, A and B must notify pawnshop D and obtain pawnshop D’s consent before amending such division agreement.
In fact, especially with respect to written property division agreements which must be notarised, once the agreement has entered into effect and the property-divided spouse has transacted with a third party such as a mortgagor or lessor, etc., the notary practice organisation can check the history of these transactions. If it is found that such properties have been mortgaged to a bank or to another spouse, the notary practice organisation will usually not accept the amendment nor cancellation of this agreement. Therefore, to protect themselves, the notaries usually request the spouses to lift the mortgage before accepting the amendment or cancelation of the property division agreements, even though the spouses have the approval from the bank regarding such amendment or cancelation.
After the
agreement on common property division of the spouses
during the marriage period is terminated, the divided separate properties still
belongs to either spouse, unless otherwise agreed upon by them. Subsequently,
the determination of their separate and common properties shall be carried out
as previously agreed upon. Accordingly, yields and profits from
the divided separate properties shall
be their common properties, and the properties arising from that separate properties
shall constitute the separate properties of each spouse[6].
[2] Article 51 of the Law on Notarisation 2014.
[4] Article 41 of the Law on Marriage and Family 2014.
[6] Article 41.2 of the Law on Marriage and Family 2014.
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