The matrimonial property regime is an important legal regulations. The matrimonial property regime creates a legal basis for husband and wife to exercise their property rights and obligations, thereby contributing to the stability and sustainability of marriage and family relationships. The 2014 Law on Marriage and Family recognizes two property regimes: The agreed matrimonial property regime and the statutory matrimonial property regime. The following article shall analyze the statutory property regime under the 2014 Law on Marriage and Family (hereinafter referred to as the “Matrimonial Law”).
General principles of the statutory matrimonial property regime
Firstly, husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor. In the common life, due to their close emotional attachment, joint efforts and will to build a common life, husband and wife have equal rights to own and enjoy common property. Such provision is set forth to ensure fairness for spouses who do not participate in income-generating activities but perform housework; to limit the cases in which one party takes advantage of his/her economic and income advantages to infringe on the equal rights between husband and wife.
Secondly, husband and wife have the obligation to ensure conditions for meeting their family’s essential needs. Husband and wife have the right and obligation to perform transactions to meet essential needs such as food, clothing, shelter, study, medical examination and treatment, etc. for family members. The establishment, making and termination of transactions related to the home being the sole domicile of husband and wife shall be agreed by both of them. In case the home is under the separate ownership of the husband or wife, the owner has the right to establish, make and terminate transactions related to that property but shall ensure domicile for the couple.
Thirdly, when the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid. This principle ensures the legitimate rights and interests of a bona fide third party. According to Article 32 of the Matrimonial Law, in some transactions, if third party thereto is the bank, securities company, the holder of the bank or securities account shall be regarded as the person having the right to establish and make transactions related to that property. Such provision not only protects the legitimate interests of the third party but also contributes to the promotion of civil exchanges when husband and wife can easily conduct transactions with the third party without having to prove their marital status.
Regulations on common property of husband and wife
Firstly, grounds for establishing common property include (Article 33 of the Matrimonial Law):
– Property created by a spouse in the marriage period.
– Income of husband and wife in the marriage period. Such income is generated from labor, production and business activities. Besides, there are also bonuses, lottery winnings, some kind of allowance….
– Yields and profits arising from separate property in the marriage period.
– Property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property. If in the gifting contract or in the owner’s will, he/she declares to leave the property to both husband and wife, then such property belongs to the common property. On the contrary, if the owner declares to leave the property to husband and wife separately or determines the proportion for each party, that property is deemed as the separate property of the husband and wife.
– The land use rights obtained by a spouse during marriage period.
– Property that the husband and wife agree to be common property.
– Property that is presumed to be common property. Stemming from practical requirements, in order to limit disputes over seperate property without evidence to resolve disputes, such provision is set forth.
Secondly, rights and obligations of husband and wife
Husband and wife have equal rights in creating and owning common property. The possession, use and disposition of common property shall be agreed upon by husband and wife; for real estate, movable assets which are required by law to be registered for ownership, and assets which are the major income-generating source for the family, such agreement shall be made in writing.
Regarding the registration of ownership and use right of common property: For a common property which is required by law to be registered for ownership or use, both spouses shall be named in the ownership or use right certificate, unless otherwise agreed by the couple.
In addition, husband and wife have obligations with common property as prescribed in Article 37 of the Matrimonial Law, such as: Obligations performed by a spouse in order to meet the family’s essential needs; obligations arising from the use of separate property for maintaining and developing common property or for generating major incomes for the family; obligations to pay damages caused by their children as prescribed by the Civil Code. Joint responsibilities between husband and wife also apply to the obligations in Article 37. In case one party performs civil education lawfully to meet essential needs, even if the other does not know or knows but disagrees, is still liable.
Regulations on separate property of husband and wife
Firstly, grounds for establishing separate property include (Article 43 of the Matrimonial Law):
– Property owned by this person before marriage;
– Property inherited by or given separately to him/her during the marriage period. If the owner declares in a will or contract that he/she will leave the property separately for either spouse or determines a specific percentage of the value of the property to which each party is entitled, it is, in principle, separate property of each spouse.
– Property divided after common property is divided in marriage period; yields and profits arising from the separate property of each party after the division of common property during the marriage, unless otherwise agreed upon by the husband and wife.
– Property created from separate property of a husband or wife; yields and profits arising from separate property during the marriage period. Property formed from separate property of husband and wife is property created when husband and wife exercise owner’s rights to their own property. For example, when husband and wife use their own money to buy a house or a car, the house and car are owned by the husband and wife.
– Property serving the essential needs of the spouses.
– Other property which, as prescribed by law, is separate property of husband and wife, that is: Property rights to intellectual property objects; property that husband and wife establish separate ownership according to a judgment or decision of a court or other competent agency; allowances and incentives received by husband and wife according to the provisions of the law on incentives for people with meritorious services to the revolution and other property rights associated with the spouse’s identity.
Secondly, on the rights and obligations of husband and wife towards separate property:
Husband and wife have the right to possess, use and dispose of their own property. Husband and wife can also decide on the management of such property by themselves, can directly or authorize another person to manage, and if there is no authorized person to manage, only the other person has the right to manage the property.
However, the law will limit the ownership right of husband and wife to separate property in two cases: Firstly, separate property where the yields and profits arising from that separate property are the family’s sole source of livelihood. family, this decision must have the consent of both husband and wife; Secondly, transactions related to the house which is the sole residence of the husband and wife must have the consent of both. such property, but must ensure accommodation for the family.
Besides the rights and obligations of husband and wife with respect to separate property are specified as follows: “Each person’s property obligations shall be paid from his/her own property”. Separate obligations under Article 45 of the Matrimonial Law include: obligations each party has before marriage; obligations arising from the possession, use and disposition of private property, except for the cases where obligations arise in the preservation, maintenance and repair of private property generating the main source of family income; obligations from transactions established and performed by one party not for the family’s needs; obligations arising from a breach of law by a party.
This is the article advising on “The statutory matrimonial property regime under the 2014 Law on Marriage and Family” by Apra Law Firm. If you have any questions or concerns, please contact the hotline for further advice and support.
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