Land without "red book" is divided in case of divorce?

During the divorce process, the division of common property, especially land use rights, is still a "hot" topic of interest to many people.

Speaking to reporters of Tin Tuc and Dan Toc Newspaper, Lawyer Ha Thi Thu Thao, Ho Chi Minh City Bar Association, said: According to Clause 21, Article 3 of the 2024 Land Law, the Certificate of land use rights and ownership of assets attached to land is a legal document for the State to confirm the legal land use rights and ownership of assets attached to land of the person with land use rights and ownership of assets attached to land.

Property attached to land that is granted a Certificate includes: Housing and construction works according to the provisions of law. Certificates of land use rights, house ownership rights and other property attached to land granted according to the provisions of the law on housing, the law on construction and other relevant laws have the same legal value as the Certificate prescribed in this Law.

A corner of An Khanh ward (Ho Chi Minh City).

Therefore, in the case of a land plot that has not been granted a red book, determining legal land use rights will encounter many difficulties, leading to complicated consequences in the process of implementing administrative procedures, especially the procedure for dividing common property of spouses upon divorce or after divorce.

Pursuant to Article 33 of the 2014 Law on Marriage and Family, the common property of spouses includes: Property created by the husband and wife; income from labor, production and business activities; profits and income arising from separate property; and other legal income during the marriage... The right to use land that the husband and wife acquire after marriage is the common property of the husband and wife, except in cases of separate inheritance, separate gift or acquisition from separate property. Therefore, if the house or land is formed during the marriage by the husband and wife jointly created (through purchase and sale, land reclamation, joint gift...), even if there is no "red book", this property is still considered common property if it can be proven that the process of legal use and creation is legal.

"In case one or both parties request to divide the property upon divorce (or after divorce), the Court will consider the division based on the origin, contribution and other factors. If the land plot is eligible for a "red book" but the procedure has not been completed, the court still has the authority to accept and divide the common property," lawyer Thao informed.

Also according to Lawyer Ha Thi Thu Thao, if the land plot has not been granted a land use right certificate, but there is evidence to prove that it is the legal joint property of the husband and wife, the court can still consider dividing the land use right or the corresponding value of the land use right, depending on the actual records and requests of the parties.

On the contrary, in cases where land has illegal origin, is in dispute, violates planning or is illegally constructed (such as houses on agricultural land, encroached land, violates safety corridors, etc.), the Court does not consider dividing land use rights.

However, the Court can still recognize and divide the value of the property, which is a construction, house or structure created by the couple on that land. At that time, the Court will determine the efforts, costs and investment value of each party to divide it reasonably, ensuring legitimate and fair rights for the parties.

Source: https://baotintuc.vn/giai-ma-muon-mat/dat-chua-cap-so-do-khi-ly-hon-duoc-phan-chia-nhu-the-nao-20251110202524253.htm