Shared debt of husband and wife after divorce is paid by whom?
1. What is the common debt of husband and wife?
Joint debt is a debt formed from the transactions established by the husband and wife together or the obligation to compensate for damage for which the husband and wife are jointly liable according to the law. A debt made by a spouse to meet the family’s essential needs.
2. How to determine joint debt of husband and wife
According to Article 37 of the Law on Marriage and Family 2014, during marriage, husband and wife have the following common property obligations:
| Article 37. Joint property obligations of husband and wife
Married spouses have the following common property obligations: 1. Obligations arising from transactions established by the husband and wife by mutual agreement, the obligation to compensate for damage for which the husband and wife are jointly liable according to the law; 2. Obligations performed by a spouse to meet the basic needs of the family; 3. Obligations arising from the possession, use and disposition of common property; 4. Obligations arising from the use of separate property to maintain or develop the common property or to generate the main source of income for the family; 5. Obligation to compensate for damage caused by children, which according to the Civil Code, parents must compensate; 6. Other obligations as prescribed by relevant laws. |
Clause 20, Article 3 of the Law on Marriage and Family 2014 clearly stipulates that “Essential needs are ordinary daily-life needs for food, clothing, accommodation, study, medical examination and treatment, and daily-life needs. indispensable for the life of each person, each family”.
Therefore, the common debt of husband and wife is the debt agreed upon by both husband and wife; may be intended to meet a family’s essential needs; from possession, use and disposition of common property; from the use of private property to maintain and develop the common property or to create the main source of income for the family; from the obligation to compensate for damage caused by their children according to the provisions of the Civil Code, the parents must compensate.
3. The joint debt of husband and wife after divorce is paid by whom?
Once the common debt of husband and wife has been determined, the husband and wife must jointly take joint responsibility for such common debt as prescribed in Article 27 of the Law on Marriage and Family 2014.
| Article 27. Joint responsibilities of husband and wife
1. Husband and wife are jointly responsible for transactions performed by one party as prescribed in Clause 1, Article 30 or other transactions in accordance with the provisions on representation in Articles 24, 25 and 26 of this Law.</ span> 2. Husband and wife are jointly responsible for the obligations specified in Article 37 of this Law. |
In addition, Article 60 of the Law on Marriage and Family 2014 stipulates the settlement of property rights and obligations of husband and wife towards a third party upon divorce as follows:
| Article 60. Settlement of property rights and obligations of husband and wife towards third parties upon divorce
1. Property rights and obligations of husband and wife towards a third party remain effective after divorce, unless otherwise agreed by husband and wife. 2. In case of dispute over property rights and obligations, the provisions of Articles 27, 37 and 45 of this Law and the provisions of the Civil Code shall apply for settlement. |
Thus, the common debt of husband and wife, both husband and wife are obliged to pay the debt even though they are divorced. At the same time, even though divorced, the husband and wife’s joint debt to the third party is still valid, and both husband and wife continue to be jointly responsible for paying the common debts established during the marriage.
4. What is defined as a separate debt of a spouse?
Separate property obligations of husband and wife are specified in Article 45 of the Law on Marriage and Family 2014 as follows:
| Article 45. Separate property obligations of husband and wife
Spouse has the following separate property obligations: 1. Obligations of each party before marriage; 2. Obligations arising from the possession, use and disposition of separate property, except for the case where the obligation arises in the preservation, maintenance and repair of separate property of husband and wife as prescribed in Clause 4, Article 44 or specified in Clause 4, Article 37 of this Law; 4. Obligations arising from the violation of the law by the husband and wife. |
Accordingly, based on the purpose of use of that loan to determine whether it is a joint debt or a separate debt and whether the husband and wife have to pay together or not.
Above is the advice of Khoa Tin Law on: “Whose debt will be paid by husband and wife after divorce”.
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