The Law on Marriage and Family does not regulate specifically the division of common properties of the spouses such as a contribution in a limited liability company in conditional business lines requiring certain occupational certificates or kinds of licenses for individuals. Under the principles prescribed by the Law on Marriage and Family 2014 on spouses’ properties and the current Law on Enterprises on company’s properties, in case a contribution is qualified as a spouses’ common properties under Article 33 of the Law on Marriage and Family 2014, the Court will divide this contribution between them under the principle of property division.
However, these conditional business lines are specific industries associated with the practitioners’ knowledge, skills, and experience, which may affect the national security, social order and safety, social morality and community health. Therefore, if either spouse is not a licensed practitioner, the split of the capital contribution for both of them to become a contributing member of the company is not in accordance with the law on business and investment and nor is it reasonable. Thus, in this case, the capital contribution will be granted to the licensed individual and the other will receive an amount of value proportionate to the amount of capital contribution he or she would have been entitled to.
It should also be noted that, if both spouses are practitioners in the same field and that they both contribute capital to the same company or have stakes in different companies, in judicial practice, the Judges may be confused when attempting to divide the properties. Therefore, the principles applicable to property division upon divorce under the law will be applied and will be carefully considered by the Court in order to make a legal decision favouring the equality of the spouses. The principles used under such laws are[2]:
- Family’s situation and respective situation of each spouse;
- Respective contribution to each spouse to the establishment, maintenance and development of the common properties of the spouses;
- Respective household labour of each spouse is regarded as a profitable labour;
- To protect the reasonable interests in respective business, production and occupation of each spouse in order for them to keep making income;
- Respective fault in violation of each spouse’ rights and obligations; and
- The spouse having a business related to the common properties is entitled to those properties and must compensate the other spouse with an amount of value proportionate to the amount of common properties of the spouses that person would have been entitled to.
Based on the above principles, when dividing the common property of the spouses which is a capital contribution in a limited liability company in conditional business lines, the Court will give priority to measures protecting the reasonable interest of those who are licensed practitioners such as lawyers, doctors, architects, etc. since these business lines have a certain value and influence on the society. Therefore, in this case, the Court must maintain the operation, stability, and development of the company while complying with the principle of equality between spouses. The Court must also take into account their respective contribution and effort, in order to issue a grounded decision on the division of properties.
[2] Article 59 of the Law on Marriage and Family 2014.
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