Marital vs. Separate Property After Divorce in Vietnam: How to Divide Fairly and Legally?
1. General Provisions Under the Law on Marriage & Family 2014 (Effective Until 2025)
According to Article 59 of the 2014 Law on Marriage and Family, marital property is divided equally (50/50) upon divorce, unless the spouses reach another agreement or there are special factors to consider.
Factors that influence the division ratio include:
The financial and personal circumstances of each spouse, especially the difficulty of resuming life post-divorce.
Each party’s contributions (financially or through domestic duties and caregiving).
Faults by either spouse (such as abuse, deceit, etc.).
2. Distinguishing Between Marital and Separate Property
Marital property includes:
Assets acquired during the marriage, such as income, savings, real estate, vehicles, etc.
Separate property includes:
As defined in Article 43 of the Law on Marriage & Family 2014 and Decree No. 126/2014/ND-CP:
Property owned before the marriage;
Property inherited or gifted to one spouse individually;
Property serving personal essential needs;
Individually disposed property;
Intellectual property rights;
Property acquired from court rulings or decisions;
Property derived from separate assets (e.g., selling a private house to buy a private car).
Furthermore, if spouses voluntarily agree to keep certain assets separate or not divide specific joint assets, the court will recognize the agreement if it complies with legal provisions.
3. Cases of Marital Property Division
According to Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP:
If the couple cannot agree, the court will apply statutory property division rules based on Article 59 of the Law on Marriage and Family.
Specific situations include:
Living with extended family: If the asset’s origin is unclear, the court will evaluate contributions to determine division.
Land use rights: Whether determined as joint or separate depends on the specific circumstances of each case.
4. Principles for Dividing Tangible Property
The law prioritizes the division of tangible assets (such as houses and cars). If one party receives an entire asset, they must compensate the other party for their corresponding share of its value.
5. Procedures When No Agreement Is Reached
Prepare a complete set of documents: lawsuit petition, marriage certificate, proof of joint/separate property, divorce judgment (if previously divorced), etc.
File the case with the district-level People’s Court where either party resides, following the 2015 Civil Procedure Code.
Resolution timeline:
First-instance trial: 4 months (extendable by 2 months);
Appellate trial: 3 months (extendable by 1 month).
Once the judgment becomes effective, if the losing party refuses to comply, enforcement measures may be applied.
6. Practical Notes
Children are not included in the division of marital property, unless: they are named in joint ownership documents or the parents agree to allocate property to them.
A spouse may still request property division years after divorce.
Hidden assets (“secret funds”) may still be considered separate property if there is clear evidence.
Taxes and fees generally do not arise from property division unless the assets are sold/transferred between spouses. If costs are incurred, the parties can agree on payment or the court may assign it to the receiving party.
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