Requesting the Court to resolve the common property division of the spouses upon divorce is the right of the spouses. As a rule, the Court cannot refuse to accept any legitimate requests of the people/citizens. During the marriage period, the common properties of the spouses, as defined in the previous sections, include real estate and movable properties. Therefore, in cases where the spouses request the Court to divide properties during the marriage, which are of small value and are no longer usable such as household utensils, cups, chopsticks, tables, chairs and televisions, etc. if divided, the Court still has to accept them.
In the current settlement of some divorce cases, the Court receives a long list of common properties which have been requested by the litigants. It is defined by law that property includes “objects, money, valuable papers, and property rights”[2]. So, whether the litigants want to divide a cup, chopsticks, kitchen utensils or an item which can be worth 01 VND, the Court still must deal with it in principle. So, what are the rules for the Court to handle this?
Below are 05 main principles currently applied by the Court to settle the above request for the property division of the litigants.
The first principle
Based on the spouses’ agreement during mediation. This principle is respected and encouraged to be implemented by the law. In many cases, the Court facilitates and encourages both spouses to voluntarily agree on this property division.
The second principle
The principle of the safeguard of equality is also known as the principle of equal division. This principle is reasonable for today’s society where man and woman are equal as the spouses join hands to perform the common duty to build the family. If splitting the properties in two halves is of no use-value, the Court will consider that it can be divided between alternative items so that the value of both spouses is balanced.
However, in order for this principle to be harmonised, consistent with the trials in the system of Civil Courts in general and particularly in that of the Family and Juvenile Courts, the Court should supplement the principle as a basis for determining the portion of common property division according to Article 59.2 of the Law on Marriage and Family 2014[4] and Article 7.4 of the Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP guiding this, including the following factors: the spouses’ family situation (after divorce, any spouse facing obstacles in life and not ensured of a stable life shall be prioritised in all matters regarding the assistance of types of properties to improve life); the efforts of the spouses in the creation, maintenance and development of such common properties; recognising that housework is also a form of paid labour; the safeguard of each spouse’s legitimate interests in their professional activities; the fault element.
The third principle
The principle is that the common properties of the spouses shall be divided in kind or in value[7]. This principle is implemented based on the reality stated in the applicable Civil Code on the definition of divisible objects[8] (being the objects which retain the original nature and function of use, such as rice, cement, etc., when divided) and indivisible objects (being the objects which do not retain the original properties and features used, such as motorcycles, washing machines, air conditioners, cups, chopsticks, etc., when divided). Therefore, the Court will prioritise dividing by reciprocal objects of equivalent value first. When impossible, the Court shall award the objects to one spouse and the other shall receive the equivalent monetary value.
The fourth principle
The principle of divided property assurance complies with the practical needs of the spouses to serve the life of each spouse after divorce. This principle is considered for petition when any property is associated with either spouse’s use. For example, during the marriage period, the husband makes a living by being a motorbike-taxi driver and the wife generates income by opening a printing and photocopying shop. When considering the common property division at the spouses’ request when divorced, the Court will divide the properties as tools for husband’s job of driving motorbike-taxi and the properties to be used for wife’s job of printing and photocopying on the principle of equal property division value.
The fifth principle
This principle aims to protect wives, minor children, or children who have lost their civil act capacity, have no working capacity and no property to support themselves. It is also considered by the Court to apply not only in the property division in case of such division is no longer usable above, but throughout the process of the Court resolving the divorce case.
Above are the principles which are currently being applied by Courts to solve the property division in divorce cases. These principles are approached by the Judges with flexibilily to ensure fairness of rights as well as the maintenance of the rights and obligations of the litigants in the divorce cases.
The reality shows that it is not simple to determine the effort of the husband and the wife in creating, maintaining, and developing the common properties of the spouses according to the third principle above. As mentioned, labour in family is considered to be income earners. However, the actual execution of this provision is not consistent, resulting in many different interpretations of the same issue. In order to consider both spouses’ effort into the common properties, it is necessary to look at the origin of the properties as well as the person managing and keeping it. The greater the value of the assets, the higher the level of expertise. The time of formation and preservation of the properties are also required. As the law does not have specific instructions by numbers for this case, it is applied based on the perspective and qualitative nature of each Court[10].
Despite the difficulties as mentioned above, in the authors’ point of view, this issue shall be solved in the future provided that the people applying the law must tend to approach the rapid development of society. For labourer in family, we have classified some common types of labour as follows: purchasing raw materials, preliminary stages and processing of foods for families; house cleaning; looking after, caring for, nurturing, and educating the children (in the education of children, the most obvious task is the effort to bring their children to school and take such children home); looking after, caring for, and nurturing elderly people in the family; caring for garden, pets, home decoration, etc. Once the concept of housework and labourer in family is understood, we can refer to the market price of those services to determine the monetary value of the family labour. The important thing is the value of the opportunity cost incurred by the housewife to assess each person’s contribution to the overall properties of both spouses. For example, with the emergence of the motorbike-taxi/tech-taxi market, we can calculate the effort (although relatively) of the daily transportation of children to school, the daily entertainment fees that the labourer in family spends. An income worker will have to pay an equivalent fee for this if there are no labourer in family. Therefore, this saved cost should be included in the common properties of the spouses.
Besides, for
the fault factor, most Courts, when dividing properties, only consider direct
fault. In fact, there are cases where the fault arises from the wife, but only consequently to a reason
linked to the husband. For example, a husband dissolves his family’s properties to satisfy his drug addiction. During that time, he often abuses his wife and because of the children’s lives, the wife quietly
endures it. After such tumultuous time, the wife lives unhappily and was
protected by another person so she had an affair with a third party. When conducting a
divorce trial, the Court only considers the direct fault of the wife’s adultery. Therefore, although the husband has committed a fault in the
marriage, it is not intervened by
law[12].
[2] Article 105 of the Civil Code 2015.
[4] Article 59.2 of the Law on Marriage and Family 2014.
[7] Article 59.3 of the Law on Marriage and Family 2014.
[8] Article 111 of the Civil Code 2015.
[10] Nguyen Xuan Binh and Le Van Anh, “The principle of matrimonial property when divorced”, People’s Court Journal, https://tapchitoaan.vn/bai-viet/phap-luat/nguyen-tac-chia-tai-san-chung-cua-vo-chong-khi-ly-hon.
[12] Nguyen Xuan Binh and Le Van Anh, “The principle of matrimonial property when divorced”, People’s Court Journal, https://tapchitoaan.vn/bai-viet/phap-luat/nguyen-tac-chia-tai-san-chung-cua-vo-chong-khi-ly-hon.
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