Question 80: When the division of the common properties of the spouses deals with real estate which is mortgaged by a bank and/or currently still being leased to the third party for business/residence at the time of divorce, what are the husband’s and the wife’s obligations towards the bank and the lessee after dividing the properties?

According to the applicable law, spouses have the following common obligations after divorce regarding the obligations arising from[2]:

  • The transactions established under their agreement and their joint liability are prescribed by law;
  • the possession, use and disposition of the common properties; and
  • the performance by a spouse in order to meet the family’s essential needs.

When divorced, the spouses are free to agree on all matters related to the division of common properties of the spouses[5]. In the occurence where the common properties of the spouses are real estate mortgaged by a bank and being leased for residential or business purposes, the spouses should try to reach an agreement on common property the division as well as on the fulfillment of their obligations in the mortgage contract. The Court shall only intervene when it receives a request of resolution from one spouse, from the spouses or from a third party[6]. Please note that the spouses’ agreement, in this case, must be approved by the mortgage bank.

In case the spouses cannot come to an agreement or that the bank disagrees with the settlement solution, they shall be jointly responsible upon divorce for the rights and obligations of the house arising from the mortgage contract based on the house[8], including interest and loan repayments. The division of properties, in this case, could be resolved by requesting a Court settlement.

If the house is being rented for residence or business purposes, after the divorce, the leasing term will remain valid. Since the house has been divided, the spouse who is the latest owner has the obligation to maintain the lease until the expiry of the term as agreed upon in the signed lease agreement unless otherwise agreed with the lessee in writing.

[2] Article 37 of the Law on Marriage and Family 2014.

[5] Article 7.1 of the Joint Circular No. 01/2016/TTLT-TANDTC-BTP dated on 06 January 2016.

[6] Article 7.3 of the Joint Circular No. 01/2016/TTLT-TANDTC-BTP dated on 06 January 2016.

[8] Article 27.2 and Article 60.1 of the Law on Marriage and Family 2014.

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