Husband and wife have the right to
choose to apply the statutory or agreed property regime. Basic
contents of an agreement on the matrimonial property regime (prenuptial
agreement) includes: (i) Property determined as common property and separate
property of the husband and wife;(ii) Rights and obligations of the husband and
wife toward common property, separate property and related transactions;
property to meet the family’s essential needs;(iii) Conditions, procedures and
principles of property division upon termination of the property regime;(iv)
Other related contents.
When choosing to apply
the agreed matrimonial property regime, husband and wife may reach agreement on
determination of property as follows:(i) Matrimonial property includes common
property and separate property of husband and wife;(ii) Husband and wife have
no separate property and all property a spouse has before marriage or during
the marriage period is common property;(iii) Husband and wife have no common
property and all property a spouse has before marriage and during the marriage
period is separate property of that spouse;(iv) Property is determined as
otherwise agreed by husband and wife.
Although property regime
is based on the wills of the parties, it still must comply with regulation of
law. Agreed property regime shall be made in writing before their marriage and
be notarized or certified. The agreed matrimonial property regime shall be
established on the date of marriage registration. It should be noted that in
case of applying the agreed matrimonial property regime, when establishing and
making a transaction, a spouse shall provide a third party with relevant
information. If a spouse fails to perform this obligation, the third party
shall be regarded as acting in good faith and have his/her/its interests
protected.
An agreement on the
matrimonial property regime shall be declared to be invalid by a court when:
(i) It fails to meet the conditions on effect of transactions;(ii) It violates
one of the provisions in Article 29, 30, 31 or 32 of Law on marriage and family
2014;(iii) Its contents seriously infringe upon the rights of being supported
and inherit and other lawful rights and interests of parents, children and
other family members.
Specifically, both
parties must still comply with the regulations on:
· General principles of the matrimonial property
regime: (i) Husband and wife have equal rights and obligations in the creation,
possession, use and disposition of their common property without discrimination
between housework labor and income-generating labor; (ii) Husband and wife have
the obligation to ensure conditions for meeting their family’s essential
needs.; (iii) When the performance of property rights and obligations of
husband and wife infringes upon lawful rights and interests of the wife, husband,
their family or other persons, compensation shall be paid.
· Rights and obligations of husband and wife to
meet their family’s essential needs: (i) Husband and wife have the right and
obligation to conduct transactions to meet their family’s essential needs; (ii)
In case husband and wife have no common property or their common property is
not enough to meet their family’s essential needs, they shall contribute their
separate property according to their financial capacity.
· Transactions related to the home being the sole
domicile of husband and wife and transactions with third parties in good faith
related to bank accounts, securities accounts and other movable assets which
registration for ownership and use is not required according to regulation of
law.
In summary, although
property regime is based on agreement of both parties, this written agreement
still must comply with regulation of law and is not allowed to violate rights
of other party or any other individual, organization. If such agreement
violates above provisions, persons with related rights and interests may
request a court to declare it invalid. According to regulation of law,
following agencies, organizations and individuals are entitled to require the
Court to declare matrimonial property regime of spouse invalid: (i) Spouses
have agreed on property regimes; (ii) Person whose right and legal interest
violated due to matrimonial property regime of spouse and his/her guardian.
Once property regime
agreement is mad, are both parties entitled to edit?
In case of applying the
agreed matrimonial property regime during the marriage period, husband and wife
may reach agreement to modify and supplement some or all contents of that
property regime or apply the statutory matrimonial property regime. The
agreement modifying and supplementing the matrimonial property regime shall be
notarized or certified in accordance with law. The agreement modifying and
supplementing contents of the matrimonial property regime shall take effect on
the date it is notarized or certified. A spouse shall provide a third party
with relevant information. Property rights and obligations arising before the
time of modifying and supplementing the matrimonial property regime must remain
legally valid, unless otherwise agreed by involved parties.
Upon divorce, the
following case will apply statutory matrimonial property regime, it means that
parties will reach agreement, if they fail to reach agreement, at the request
of a spouse or both, a court shall settle it according to Law on marriage and
family: (i) There is no written agreement of matrimonial property regime of
spouse;(ii) Written agreement of matrimonial property regime of spouse is
declared completely invalid by the court.
Case will apply agreed
matrimonial property regime: There is a written agreement of matrimonial
property regime and this written agreement is not declared completely invalid
by the Court. The following cases will apply provisions of Law on marriage and
family:(i) The agreement is insufficient or unclear;(ii) The matters are not
agreed by both husband and wife.
It is important that
spouses consult with family lawyers if potential disputes would lead to divorce
for proper preparation before filing a lawsuit.
ANT Lawyers is a
Vietnamese law firm in Vietnam with English speaking
lawyers whom understand the laws of Vietnam within the business and the local
culture context. We provide convenient access to our clients. Please contact
our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our
office at +84 28 730 86 529
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