Effective time of division of common property during marriage
1. Effective time of division of common property during the marriage period
Article 39 of the Law on Marriage and Family 2014, stipulating the effective time of division of common property during the marriage period is determined as follows:
– That is the time agreed upon by husband and wife and recorded in writing; if it is not specified in the document, the effective date is counted from the date of making the document.
– Where according to regulations, transactions related to such property must comply with a certain form, the division of common property of husband and wife takes effect from the time the agreement complies with the form prescribed by law.
– In case of division by the Court, the division of common property takes effect from the date the Court’s judgment or decision takes legal effect.
– Property rights and obligations between husband and wife and a third party arising before the effective time of division of common property are still valid, unless otherwise agreed upon by the parties.
2. Consequences of division of common property during marriage
According to Article 14 of Decree 126/2014/ND-CP dated December 31, 2014 stipulating:
– The division of common property of husband and wife during the marriage period does not terminate the property regime of husband and wife as prescribed by law.
– From the time when the division of common property takes effect, if the husband and wife do not otherwise agree, the property will be divided; yields and profits arising from such property; yields and profits arising from other separate property of husband and wife are separate property of husband and wife.
– From the time when the division of common property of husband and wife takes effect, if the property is obtained from the exploitation of separate property but the source cannot be determined, it shall be jointly owned by the husband and wife.
3. Termination of the effect of division of common property during the marriage period
– Husband and wife have the right to agree to terminate the effect of division of common property after division of common property during the marriage period.
– Mandatory form of agreement is in writing and is notarized at the request of husband and wife or as prescribed by law.
– From the effective date of the agreement, the determination of common property and separate property shall comply with the provisions of Articles 33 and 43 of the Law on Marriage and Family. The part of the property which has been divided by the husband and wife remains under the separate ownership of the husband and wife, unless otherwise agreed upon by the husband and wife. Specifically:
| Article 33. Common property of husband and wife
1. Common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, yields, profits arising from separate property and other lawful incomes during a period of time. marriage, except for the case specified in Clause 1, Article 40 of this Law; property jointly inherited or given as a gift and other property agreed upon by husband and wife is common property. Land use rights acquired by husband and wife after marriage are common property of husband and wife, unless they are inherited separately, given separately or acquired. through private property transactions |
| Article 43. Separate property of husband and wife
1. Separate property of husband and wife includes property that each person has before marriage; privately inherited property, given separately during the marriage; property to be divided separately between husband and wife; property serving the essential needs of the husband and wife and other property which, as prescribed by law, belongs to the husband and wife separately. 2. Property formed from the separate property of husband and wife is also the separate property of husband and wife. Yields and profits arising from separate property during the marriage period shall comply with the provisions of Clause 1, Article 33 and Clause 1, Article 40 of this Law. |
– Property rights and obligations arising before the effective time of division of common property remain valid, unless otherwise agreed by the parties.
– In case the division of common property is done according to an effective court judgment or decision, the termination agreement must be recognized by the court.
Thus, if falling into one of the above cases, the division of common property during the marriage period will be invalidated.
Above is the advice of Khoa Tin Law on: “The effective time of the division of common property during the marriage period.”
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