Division of marital property upon divorce

Ms. Nguyen Thi T needs advice: I have been married for 3 years. My husband and I have no children. My biological parents gave me 4 hectares of land and a level 4 house to live in. On the wedding day, my mother gave me 20 taels of SJC gold as capital. I used this gold to buy and sell. The house and land are jointly owned by my husband and I. My husband and I are not happy and often have conflicts. I want to divorce my husband. I would like to ask, when I divorce my husband, can I get back the property that my parents gave me? What should I do?

Your question was advised by lawyer Le Vu Hong Hue ( Ben Tre Bar Association) as follows:

- Article 33 of the 2014 Law on Marriage and Family stipulates:

“1. The common property of a married couple includes property created by the husband and wife, income from labor, production and business activities, profits and profits arising from separate property and other legal income during the marriage, except for the cases specified in Clause 1, Article 40 of this Law; property that the husband and wife jointly inherit or are jointly given, and other property that the husband and wife agree is common property.

The land use rights that a husband and wife acquire after marriage are the common property of the husband and wife, except in cases where the husband or wife inherits them separately, is given them separately, or acquires them through transactions using separate property.

2. The common property of the spouses is jointly owned and used to ensure the needs of the family and to fulfill the common obligations of the spouses.

3. In case there is no basis to prove that the property that the husband and wife are disputing is the separate property of each party, that property is considered common property.

On the other hand, Article 43 of the Law on Marriage and Family stipulates the separate property of spouses as follows: The separate property of spouses includes property that each person had before marriage; property inherited separately or given separately during the marriage; property divided separately to spouses according to the provisions of Articles 38, 39 and 40 of this Law; property serving the essential needs of spouses and other property that, according to the provisions of law, is the separate property of spouses. Upon divorce, spouses have the right to divide property. Clause 1, Article 38 of the Law on Marriage and Family stipulates: “During marriage, spouses have the right to agree to divide part or all of the common property, except in the cases prescribed in Article 42 of this Law; if they cannot reach an agreement, they have the right to request the court to resolve the matter”.

According to your statement and the above legal regulations, you need to do the following:

+ Right to self-agreement and self-determination: First of all, the couple has the right to agree on property issues and request the court to record them, or both parties can agree on their own and not request the court to resolve them.

+ Right to request the court to resolve: In case you and your spouse have a dispute and request the court to resolve it, specifically the request to divide the marital property.

During the court settlement process, you must prove that the assets that you believe are your separate assets; prove that the origin of the assets given to you by your biological parents during your marriage is for you personally. At the same time, you must provide evidence, such as documents from parents to children, the origin of the assets, the time frame when you acquired the assets, the process of creation that gave rise to new assets, including witnesses if any... (according to the provisions of Article 43 of the Law on Marriage and Family).

H. Tram (performed)

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