Discussion on void agreement on the matrimonial property regime

While the agreed matrimonial property regime is contingent upon the mutual consent of the parties, it still must adhere to the legal framework. Consequently, instances may arise where the matrimonial property regime, as established through an agreement, is deemed void. The following article outlines situations leading to the validity of agreements on the matrimonial property regime and discusses its legal consequences in accordance with Vietnamese law.  

1. Cases where agreements on matrimonial property regime are void 

The agreement on the matrimonial property regime essentially constitutes a civil transaction, exerting an impact on the legal rights and interests of all parties involved, including any third party. Consequently, if the agreement fails to meet the conditions stipulated by law or infringes upon the rights of third parties, it may be deemed partially or entirely void. Article 50 of Law on Marriage and Family 2014 delineates specific instances where the Court declares the agreement on the matrimonial property regime as void: 

• Case 1: Failing to meet the conditions on effect of transactions prescribed in the Civil Code and other relevant laws 

As previously mentioned, the agreement on the matrimonial property regime is classified as a civil transaction, requiring adherence to the valid conditions of such transactions. One fundamental condition, articulated in Article 117 of Civil Code 2015, stipulates that a civil transaction is deemed valid only when all of the following criteria are met: (i) Participants involved in the transaction possess legal personality and/or legal capacity consistent with the nature of the transaction; (ii) Participants engage in the transaction entirely voluntarily; (iii) The purpose and contents of the transaction do not contravene the law and/or social ethics. 

With respect to other pertinent laws, as the parties form an agreement grounded in the marital relationship, failure to meet the marriage conditions outlined in Clause 1, Article 8 of Law on Marriage and Family 2014 renders the agreement void. Notably, a key condition stipulates that the prospective husband must be a man aged 20 or older, and the prospective wife must be a woman aged 18 or older. 

According to statistics from the Human Rights Campaign Foundation, currently, approximately 34 countries and territories have legalized same-sex marriage.7 Consequently, in some jurisdictions, alongside traditional marriage subjects of men and women, there are instances where same-sex couples engage in prenuptial contracts.1 Nevertheless, in Vietnam, Clause 2, Article 8 of Law on Marriage and Family unambiguously states that the State does not recognize marriage between individuals of the same sex. Therefore, individuals entering into an agreement on the matrimonial property regime, in accordance with Vietnamese law, must meet the conditions of being a man and a woman. Simultaneously, these individuals must fulfill the age requirements for marriage, which specify that men must be 20 years old or older, and women must be 18 years old or older. 

• Case 2: Violating the provisions in Articles 29, 30, 31 and 32 of Law on Marriage and Family 2014 

The provisions outlined in Articles 29, 30, 31, and 32 of Law on Marriage and Family 2014 establish a fundamental property regime that must be adhered to, whether it pertains to an agreement-based or statutory property regime.2 Consequently, if an agreement contravenes the regulations on general principles concerning the matrimonial property regime, the rights and obligations of spouses in fulfilling the essential needs of the family, transactions related to the sole residence of the couple, dealings with bona fide third parties concerning bank accounts, securities accounts, and other movable properties not requiring registration of ownership or the right to use, such agreements will be deemed void. 

To elaborate on this scenario, Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP specifies instances where an agreement on the property regime of husband and wife is deemed void. This is particularly true when the agreement violates the husband and wife’s right to secure housing, as outlined in Article 31 and Point b, Clause 1, Article 50 of Law on Marriage and Family 2014. An example of such a violation occurs when the agreement grants one party the right to dispose of the house, which serves as the sole residence of the couple. This could result in the husband and wife being left without a place to live or not having their minimum accommodation needs met in terms of area, living conditions, and environmental safety and hygiene, as stipulated by housing laws.3 

• Case 3: Containing contents seriously infringing upon the rights to be supported and inherited and other lawful rights and interests of parents, children and other family members. 

As aforementioned, agreements on matrimonial property regime affect the legal rights and interests of all the parties, including the third parties (if any), especially family members. Therefore, agreements that seriously violate the rights to support, inheritance and other legitimate rights and interests of father, mother, children and other family members will be void. 

According to the instructions in Point b, Clause 2, Article 6 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP, the content of an agreement on the matrimonial property regime is considered void in cases of serious violations of the rights to support, inheritance, and other legitimate rights and interests of father, mother, children, and other family members. These violations are specified in point c, Clause 1, Article 50 of Marriage and Family Law 2014. 

The instances where such an agreement is deemed void include cases where the agreement is intended to evade the alimony obligation, as stipulated in Articles 110 to 115 of Marriage and Family Law 2014, or to deprive heirs of inheritance rights, irrespective of the content of the will according to the provisions of the Civil Code. Additionally, the agreement may be considered void if it violates the legitimate rights and interests of father, mother, children, and other family members, as regulated by the Law on Marriage and Family and other relevant laws. 

To provide further clarity, Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP gives two examples of cases where the agreement on the matrimonial property regime is void, as follows: 

Example 1: Mr. A is obligated to support Mr. B. Later, Mr. A marries Ms. C and agrees to transfer all his assets to her. Consequently, there are no longer any assets available to fulfill Mr. A’s obligation to support Mr. B. In this scenario, the matrimonial property regime agreement between Mr. A and Ms. C is deemed void. 

Example 2: Mr. A has an adult child who is unable to work. Afterward, Mr. A marries Ms. B. They agree to establish a matrimonial property regime stating that all of Mr. A’s assets will be inherited by Ms. B upon Mr. A’s death. In this case, the content of the matrimonial property regime agreement between Mr. A and Ms. B is void concerning the part of Mr. A’s property that the child, who has lost civil act capacity, inherits according to the provisions of the law. 

2. Subject having the right to request the Court to declare the agreement on the matrimonial property regime void 

Subjects having the right to petition the Court for the declaration of the agreement on the matrimonial property regime as void when the agreement falls into one of the cases mentioned above, including: (i) Husband or wife entering the agreement; (ii) The person whose legal rights and interests are violated, the guardian of the person whose legal rights and interests are violated due to an agreement on the matrimonial property regime.  

During this process, the order and procedures for requesting the Court to declare the agreement on the matrimonial property regime void must adhere to the provisions outlined in civil procedure law.4

3. Legal consequences of the agreement on the matrimonial property regime being void 

Regarding the resolution of legal consequences arising from a void agreement on the matrimonial property regime, Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP clearly stipulates that in cases where- the agreement on the matrimonial property regime is declared completely void by the Court, the statutory property regime shall apply. In instances where the agreement on the matrimonial property regime is declared partially void, the portions that remain valid continue to apply. As for the void content, the corresponding provisions of the statutory property regime, as per the law, shall take effect.5

In conclusion, through an understanding of cases where the agreement on the matrimonial property regime is void, it is crucial for the parties involved to adhere to the legal conditions and content stipulated by the law, ensuring that the agreement has legal effect, safeguarding the will and desires of the parties when entering into this type of agreement. 

(1) Ngo Van Hiep (2022), Prenuptial contract – Theory and practice, Vietnam Lawyers Magazine.

(2) Tran Thi Nhung, Vo Van Tuan Khanh (2022), Discussing the spousal property regime according to the agreement stipulated in the Law on Marriage and Family 2014, Electronic People’s Court Magazine. 

(3) Article 6.2.a of Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP. 

(4) Article 5 of Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP. 

(5) Article 6.1 of Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP.

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