Is a Property Division Agreement Before Divorce Legally Valid?
Question: Can spouses sign a property division agreement before divorce?
Answer:
Vietnamese law fully allows spouses to mutually agree on dividing their shared assets before divorce—either during the marriage or just prior to divorce—provided the agreement is made in writing and complies with the conditions of a civil transaction.
Articles 28 and 50 of the 2014 Law on Marriage and Family clearly define the right to agree on the marital property regime before or during marriage. Such an agreement can be considered a "marital contract" if properly executed under legal regulations.
If the agreement meets all conditions—voluntary participation by both parties, written form in accordance with the Civil Code, non-violation of social morals, and protection of the rights of the spouses and children—it is legally valid and recognized by the court.
Legal Value of a Property Division Agreement Before Divorce
1. When the agreement is properly executed – It is legally valid
According to Articles 47–50 of the Law on Marriage and Family 2014, a prenuptial agreement (property regime established before marriage) that is documented in writing and notarized or certified is effective from the date of marriage registration or notarization.
Upon divorce, if there is a request and the agreement has not been invalidated by the Court, the Court will apply the terms of the agreement in the division of assets.
If the agreement is made during the marriage (before initiating divorce) and complies with formality and legal requirements, it is also valid from the date of execution or as specified in the document.
2. When the agreement is unclear, incomplete, or unlawful – Partial invalidity
If the agreement is ambiguous, incomplete, or fails to cover all asset divisions, the Court may declare the unclear parts invalid and apply the relevant provisions under Article 59 (Clauses 2–5) to handle those assets.
3. When the agreement is entirely invalidated
The Court will reject the entire agreement if it severely violates essential conditions such as: infringement on spousal equality, violation of children's alimony rights, breach of obligations to third parties, or aims to avoid responsibilities such as child support, debt repayment, or tax obligations.
In such cases, the Court will apply the statutory property regime to divide the common assets (Article 59, Law on Marriage and Family 2014), meaning the agreement will be disregarded.
Pros and Cons of Signing a Property Agreement Before Divorce
1. Pros
Reduced conflict, saved time and court fees: If spouses reach an agreement on property division and ask the Court to recognize it in the judgment before reconciliation or trial, the litigation process is shortened, and court fees for asset disputes may be reduced or waived.
More proactive and transparent: Agreements help clarify which assets are separate, which are common, and the division ratio, ensuring fairness based on contribution, circumstances, and individual needs.
2. Cons
Risk of invalidity if the agreement does not comply with the law: If the agreement is not notarized/certified, is unclear, or violates the rights of either party or their children, it may be partially or wholly invalidated.
Potential harm to the weaker party: If the agreement does not prioritize the interests of the wife or minor children, the Court may refuse to recognize it or declare it invalid.
Procedures to Ensure a Property Agreement is Legally Binding
Draft the agreement in writing (avoid verbal agreements), clearly stating separate assets, shared assets, and division ratios.
Notarize or certify the document to ensure its legal validity.
Ensure the agreement is made voluntarily and equitably by both parties, without coercion or violation of rights.
Request the Court to record the agreement in the divorce judgment or decision if both parties agree to an amicable divorce.
Conclusion
Legally valid: If drafted in writing, notarized/certified, voluntary, and not violating legal or ethical standards.
The clearer the agreement – the more respected by the Court: Reduces the risk of disputes over asset division upon divorce.
If partly or wholly invalid: The Court will revert to the statutory regime and divide assets according to Article 59 of the Law on Marriage and Family 2014.
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