Question 67: If a third party makes a transaction with a spouse without being aware that the common properties of the spouses have been divided under an agreement on common property division between the spouses, how would liability arising from the common properties be settled?

The spouses can select an agreement on the matrimonial property regime based on the principle of freedom and voluntariness together on the establishment and performance of their property rights and obligations[2]. This agreement may be a notarised or certified document such as a marriage proposal, prenuptial agreement or pre-marriage agreement.

Some contents of such agreement on the matrimonial property regime are: (i) the determination of the separate and common properties of spouses according to the agreement; and (ii) their rights and obligations on separate and common properties and relevant transactions; and on the properties for the family’s essential needs.

If such agreement is not declared invalid by a Court[4] or at a spouse’s request, when dealing with any civil transaction related to the common properties of the spouses divided during the marriage period, both must comply with the content of the agreement and provide any third party with the information relating to such agreement before the spouses enter into the transaction.

If a spouse fails to inform any third party regarding his or her property division during the marriage period, leading to an arising obligation on the divided common properties under the transaction between such spouse and third party, the third party shall be regarded as acting in good faith and have his, her or its interests protected in accordance with the law[6].

[2] Article 47 of the Law on Marriage and Family 2014.

[4] Article 50.1 of the Law on Marriage and Family 2014 and Article 5 and 6 of the Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated 6 January 2016 issued by the Chief Justice of the Supreme People’s Court, the Prosecutor General of the Supreme People’s Procuracy and the Minister of Justice on guiding the implementation of some provisions of the Law on Marriage and Family No. 52/2014/QH13.

[6] Article 16 of the Decree 126/2016/ND-CP.

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