The development of science, technology, globalization not only affects manufacturing, commercial, economic activities but also affects marriage and family aspects of each individual in different countries over the world. The amount of marriage involving foreign elements has increased because of the freedom movement among countries and the appearance of the cross-border dating and chat applications leading to the increase of marriage involving foreign element cases. Vietnam is not out of this tendency since more and more Vietnamese citizens get marriage in other countries and many individuals in other countries come to Vietnam to get married.
However, it is wrong to say that all marriages involving foreign elements are peaceful and happy. There are many cases that Vietnamese individuals marry foreigners via matchmaking for immigration aims, which leads to broken marriages and divorce. When carrying out divorce procedure, one of the issues that parties are interested in is property division, especially in case marriages involving foreign elements; these problems are more and more complicated as almost all foreign individuals in those marriages have properties both inside and outside Vietnam.
Similar to Belgium, China, French and the United States of America, Vietnamese law on marriage and family also prescribes two matrimonial property regimes of spouses, includes: the statutory property regime and the agreed property regime, so husband and wife are entitled to choose one of the two regimes. This article will analyse thoroughly problems concerning the agreed property regime according to the regulations of Vietnamese law.
The agreed property regime of spouses is the agreement in writing about matrimonial property regime established based on freedom, voluntary principle prior to marriage. Content of the agreement discussed, negotiated and agreed together by husband and wife, about issues on their properties in the marriage period, includes bases for determining properties; rights and obligations of spouses to common properties, separate properties; and cases as well as property division rules between husband and wife. After the establishment, this agreement is a legal ground to regulate rights, obligations to their properties during the marriage period.
Agreement on matrimonial property regime of spouses
Selecting the matrimonial property regime of spouses shall only be legally effective when it satisfies the requirements of form and content. Particularly:
Requirements of Form
The agreement on establishing the matrimonial property of spouses is recorded by various names, including prenuptial agreement, marriage settlement, or premarital agreement. Notwithstanding what name of this agreement, the agreed property regime shall only be effective and applicable as such agreement is made in writing before their marriage and be notarized or certified. The time at which the agreed matrimonial property regime established is on the date of marriage registration.
The requirements of form for being effective under the Vietnamese Law on Marriage and Family 2014 bears a resemblance to the Legislative System of France. Particularly, the French Civil Code states, “All matrimonial agreements shall be drawn up in a notarized writing made by Notary, in the presence and with the consent of all parties thereto or of their authorized person.”. In addition to this, the French Legislation also prescribes that when signing the marriage contract, the parties will be issued a certificate contained the precise information of name, permanent residential address of the couple who are going to get married, date of signing the marriage contract and the information of the notary being responsible for certifying the agreement. Such certificate shall be given to the civil status officers by the couple who will get married prior to the marriage in order to the civil status officers record the selection of the agreed matrimonial property regime in the marriage certificate.
Thus, in accordance with the regulations of the Law on Marriage and Family 2014 as well as the Civil Code of French, agreement to determine the property regime is in writing and having the signature of spouses is not sufficient for the effectiveness of this agreement. This agreement needs to be notarized or certified to take effect. The law in Vietnam and French requires notarization and authentication process to make the agreement effective and avoid the case in which the agreement is invalid, cannot be implemented in practice due to contents violate legal prohibitions of the law as well as prevent disputes on matrimonial property regime.
Requirements of content
The Law on Marriage and Family 2014 prescribed quite specifically about primary contents that must be mentioned in the agreement on matrimonial property regime, particularly:
- Which property is common property or separate property
- Rights and obligations of spouses to common property, separate property and relevant transactions; property to ensure for essential demands of the family;
- Conditions, procedures and rules for property division if the property regime comes into termination
- Other relevant contents depending on the agreement between husband and wife
Accordingly, agreement on matrimonial property regime of spouses has notable points about content as follows:
Firstly, determination of the property ownership right. Husband and wife need to specify clearly which property is private, which property is common to define each party’s rights and obligations. Husband and wife can reach the agreement on property determination methods as following options:
- Property between husband and wife includes common and separate property of spouses;
- There is no private property of spouses, all property of spouses gained before or during the marriage period belongs to common property;
- There is no common property of spouses, all property of spouses gained prior to and during the marriage period is private ownership of the one having such property; or
- Specify based on other agreements between husband and wife.
In case common property and separate property are agreed via enumeration way, it is important to notice that if the agreement does not mention property right of the intellectual property; property under the separate ownership of a spouse according to the judgment or decision of a court or other competent authorities; or allowance or incentives receivable by a spouse as prescribed by the law on preferential treatment toward persons with meritorious services to the revolution; other property rights associated with the personal identification of a spouse; these properties will be determined as separate property of husband/wife.
Secondly, the content of the agreement on the property of spouses must satisfy general rules on matrimonial property regime, specifically:
- Husband and wife have equal rights and obligations in the creation, possession, use and decision of their common property without discrimination between housework labour and income-generating labour;
- Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs;
- 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.
Thirdly, if the property is the sole domicile of spouse, determination, implementation, termination of transactions concerning this type of property must be agreed upon by both husband and wife. In case this sole domicile is the separate ownership of husband or wife, the person having ownership right of this property will be entitled to carry out transactions related to that property but shall ensure domicile for the other.
Fourthly, besides the above primary contents, husband and wife may agree on other contents (support for parents, children,…) related to matrimonial property regime of spouses and such contents must satisfy the needs as well as the situation of each party.
Fifthly, contents have not been agreed or unclearly agreed by the spouses, will be settled rely on basic principles and corresponding provisions of the statutory property regime.
Lastly, a part or all of the content of the agreement on the property regime of spouses may be amended, supplemented by a notarized or certified writing. Besides, the Vietnamese law still gives husband and wife a chance to change the property regime and apply the statutory matrimonial property regime during the marriage period although the spouses have applied the agreed matrimonial property regime before. This provision of Vietnamese law on Marriage and Family is quite different from the property regime in the Civil Code and Commerce of Thailand. According to the regulations of the Civil Code and Commerce of Thailand, only the competent court can change the prenuptial agreement after marriage. Thus, it can be said that provisions on changing the property regime in Vietnamese law have the flexibility and offer more favorable conditions for couples.
The matrimonial property regime is a civil agreement, so that rules on free agreement of both parties as well as no conflictions to the provisions are also applied, such as: rights to be supported, inheritance right, other lawful rights and interests of parents, children and other family’s members,… If the agreement on matrimonial property regime violates legal prohibitions, it will be declared invalid by the court.
Effectiveness against third parties
The agreement on matrimonial property regime of spouses leading to changes on husband and wife’s property decision right, therefore to ensure the valid of civil transaction against third person, law also prescribes information obligation related to the agreement on matrimonial property regime in transactions with third parties.
This is compulsory obligations of husband, wife when carrying out transactions related to common property, separate property of each party when the agreement on matrimonial property regime is applied. If husband or wife violates this obligation, the third party in transaction will be considered as a bona fide person, and the rights of this person will be settled in accordance with the Civil Code 2015. In general, regulations of Vietnamese law protect bona fide third parties when occurring disputes concerning properties of spouses.
Although there are particular provisions in the Law on Marriage and Family 2014, there are many restrictions for applying matrimonial property regime, regardless of having foreign elements or not. Notary offices will usually hesitate to authenticate an agreement on matrimonial property regime of spouses if the spouses have property is outside Vietnam, or if there is any requirement for authentication, notary offices also request parties to use templates of agreement with contents that is the same as the regulation to avoid invalid declaration risks. Therefore, in case of parties have exceptional agreements on property when marriage, parties need to pay attention to the requirements about form and contents of the matrimonial property regime, to prevent it from invalidity when occurring disputes.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.