Division of Land Use Rights upon Divorce: Procedures & Legal Grounds

Divorce is not just a matter of emotional separation; it also marks a complicated turning point in property matters — especially when it comes to land use rights. Many couples facing divorce often wonder: “Who keeps the land? Can it be divided? What are the procedures?” In this article, Dedica will share the latest legal perspectives, practical procedures, and important notes to help you — someone currently navigating this stage — gain clarity and confidently protect your rights.

1. Legal Grounds & Principles of Dividing Land Use Rights upon Divorce

1.1. Legal Basis

• The Law on Marriage and Family 2014 (as amended and supplemented) sets out the principles, rights, and obligations of spouses upon divorce.

• According to Article 59 of the 2014 Law on Marriage and Family, common property of the spouses shall be divided upon divorce (in case of dispute).

• Article 62 specifically provides for the division of land use rights when the land is jointly owned.

• Inter-ministerial Circular 01/2016/TTLT‑TANDTC‑VKSNDTC‑BTP provides guidance on implementing certain provisions of the Law on Marriage and Family, including property division.

• Decree 101/2024/NĐ‑CP (on land registration changes) outlines the documents and procedures for changing land use rights based on spousal agreement.

1.2. Principles of Division & Classification of Land Use Rights

Before division, it is essential to determine whether the land use right is considered separate property or common property:

• Separate property: if the land use right was established before marriage, or inherited/gifted individually (and not combined into joint property), it shall belong to the owner upon divorce.

• Common property: if the land was acquired during the marriage or a separate asset was merged into the common pool, it shall be divided according to the principles of dividing common property upon divorce.

If land use rights are deemed common property, division is carried out as follows:

• Agricultural land (for annual crops or aquaculture): If both spouses have demand and conditions to use the land, it may be divided by mutual agreement; otherwise, the Court shall decide.

• If only one party wishes to use the land, that party may be granted usage but must compensate the other for their share of the land's value.

• For residential land or long-term land: division follows Article 59 and land laws, taking into account contributions, individual circumstances, and faults (if any).

• If the land cannot be divided physically, it will be divided based on value — the party receiving land of higher value must pay the difference to the other.

• The Court, when dividing, considers: contributions to creating/managing the land, post-divorce circumstances (income, health, child custody), protection of vulnerable parties, and fault in marriage duties (if any).

Important: If the common property hasn't been divided during the divorce, it retains its joint ownership status. Neither party is allowed to transfer, donate, or sell it without the other’s consent.

2. Procedures for Dividing Land Use Rights upon Divorce — From Agreement to Court Resolution

2.1. Mutual Agreement & Land Registration Updates

If the couple agrees on how to divide the land:

• Draft a clear written agreement stating who retains the land, who gets compensation (if any), including area and boundaries.

• This agreement should be notarized or authenticated to ensure legal validity before the Court or land registration authorities.

• Once agreed, proceed to register changes to land use rights with the District Land Registration Office under Decree 101/2024/NĐ‑CP.

Required documents include: land use right certificate, written agreement, divorce judgment or certificate (if applicable), and relevant personal/civil status documents.

The registration office will verify the legality of the agreement, marriage status in the national database, and may request certified copies of supporting documents.

If the agreement is acknowledged in the divorce judgment (in a mutual consent divorce), that judgment serves as a legal basis for transferring land rights without needing the other party’s consent.

2.2. Filing Lawsuit at Court for Land Dispute Resolution Post-Divorce

When mutual agreement fails, one party may file a lawsuit at the competent People’s Court to divide the land:

• Jurisdiction: Court at the land’s location or the defendant’s residence.

• Documents to prepare:

  • Land dispute lawsuit form (Form 23‑DS for civil cases).

  • Divorce judgment or decision (if already divorced).

  • Land-related documents: land use right certificate, sales contracts, payment receipts, contribution records.

  • Evidence of contributions, costs for development, improvement, or management during marriage.

  • Personal documents, marriage/divorce certificates, proof of residence.

Procedure:

• The Court will accept the case, mediate (if applicable).

• If mediation fails, it proceeds to trial based on documents, statements, and evidence.

• The Court issues a judgment: either dividing land or assigning it to one party with required compensation.

Timeline:

• First-instance court: 4 months, extendable by 2 months for complex cases.

• Appeal stage: 3 months, extendable by 1 month.

Filing after divorce: Either spouse may request division of common property even long after divorce, as there is no legal statute of limitations for such requests.

However, if the property has already been divided in the divorce judgment, no further division can be requested.

2.3. Transfer & Title Change After Judgment or Agreement

Once a judgment or a valid agreement is in place:

• Carry out procedures for title transfer and change of land use rights at the Land Registration Office (pursuant to Circular 24/2014/TT‑BTNMT and Decree 101/2024).

• If the land is under one person’s name but the judgment awards it to the other, the person granted rights can process the transfer without the original titleholder's authorization.

3. Key Experiences & Practical Notes on Dividing Land Use Rights

• Collect clear, detailed evidence
  Gain advantage by gathering contracts, invoices, contribution records, witness statements — proving your contribution and land origin.

• Consider agreement before going to court
  An amicable agreement is quicker, less contentious. Once notarized and Court-recognized, it forms a solid legal basis for division without lengthy litigation.

• Pay attention to vulnerable parties and child custody
  Courts may favor the party raising children or facing economic hardship when allocating land use rights.

• Marital misconduct matters
  If one party committed adultery, abuse, or damaged shared property, the Court may adjust land division in favor of the aggrieved party.

• Time risk in delayed resolution
  As there’s no time limit for property division, delaying poses risks — the other party might transfer, conceal, or dissipate assets.

• Be cautious with sole-named land titles
  Having land in one person’s name does not guarantee sole ownership — if acquired during marriage or with both parties’ input, the other spouse still has a claim.

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