For properties being real estate, it may be divided according to the following ways: (i) dividing the real estate between the spouses; (ii) making sale of real estate and dividing the proceeds; and (iii) giving the properties to one spouse and such property receiving spouse must pay the spouse who is not given the properties a divided portion of disposed value of the properties.
In cases where, according to a Court’s divorce judgement, the common properties of the spouses compose of real estate, they shall be equally divided between the spouses. Such properties may be divided in the same manner as above.
- For immovable properties due to the characteristics of real estate or according to the provisions of law, the spouses may divide such real estate. In the authors’ view, this way should be preferred if it is possible to minimise disputes arising from the valuation of the divided real estate. Because the current valuation of real estate, in general, is quite complicated, if applied at the price set by the State, the value of the properties is usually very low as compared to the expectations of the spouses. If applied at market price, there is currently no trusted estate transaction market in which there are clear criteria for determining real estate prices, which often depends on assessments of real estate trading companies and brokers, as well as unsual variation of real estate values;
- If the real estate is not eligible for division as prescribed, or the division may result in the reduction of its value or that the spouses do not wish to own or use the real estate, the real estate may be divided by selling it and then divide the sale money to the spouses. The sale of the real estate may be agreed upon by the spouses in order to find a suitable buyer and is divided at a rate corresponding to the the Court judgement or decision. If no agreement is reached, either or both spouses may request the enforcement authority to sell the real estate through a property auctioning organisation; and
- If only one of the spouses wishes to own and use the real estate or that one spouse is not eligible to own and use the real estate while the other is entitled to such right, the real estate may be divided in such a way that one spouse receives the real estate while the other receives an amount of money equivalent to the real estate’s value.
If this division method is evident in the division of the real estate, what about the case of land use rights for annual crops and aquaculture. According to the Land Law, only people directly engaged in agricultural production can use the paddy field[2]. Therefore, if one of the spouses is not directly engaged in agricultural production when divorced, the real estate i.e. the paddy field, will be assigned to the direct production spouse while the other will receive an amount of value in proportion to the part of real estate that he or she is entitled to.
In addition, the transfer of real estate to a spouse must be founded on the principle of division of properties upon divorce, including the following principles:
- Circumstances of the family, spouses;
- Each spouse’s contributions to the creation, maintenance, and development of the common properties. The housework done in the family by a spouse shall be regarded as an income generating labour;
- Protecting the legitimate interests of each spouse in their production, business and career activities to create conditions for them to continue working to generate income;
- Each spouse’s faults in the infringement of spousal rights and obligations; and
- The legitimate rights and interests of the wife, children or minors who have lost their civil act, capacity or have no working capacity and no property to support themselves shall be protected.
For cases related to the sale and division of
real estate, one spouse will be the recipient of the real estate, while the other receives the value of his or her share of the real
estate. The
determination of the real estate value will be
based on the agreement of the spouses. If the spouses cannot reach an
agreement, the spouses may request or propose the Court to request the
intervention of an assets appraising organisation to determine the value of the real estate. In either cases, the value of the real estate must be determined
according to the market price at the time of settlement of the case[4]. It is common for a civil case to be tried at
first instance several times for different reasons. Therefore, it could be
understood that real estate value will be determined by market value at the
latest time of the first instance trial.
[2] Article 191 of the Law on Land 2013.
[4] Article 7.5 of the Joint Circular 01/2016/TTLT-TANDTC-VKSNDTC-BTP.
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