The concept of “the agreed matrimonial property regime” has been prescribed by the 2014 Law on Marriage and Family, however, such concept is not commonly used in Vietnam. Nevertheless, if the spouse can establish the agreement on the matrimonial property regime before the marriage, this agreement shall help the parties to partly solve the difficult problems in the process of property division when they divorce.
For the time being, the contents related to the agreement on the matrimonial property regime are governed by the 2014 Law on Marriage and Family and Decree No. 126/2014/ND-CP detailing a number of articles and measures for the implementation of the 2014 Law on Marriage and Family.
What is “the agreement on the matrimonial property regime”?
The matrimonial property regime includes the statutory matrimonial property regime and the agreed matrimonial property regime. In which, the agreed matrimonial property regime means the property regime discussed and agreed by both husband and wife before marriage on contents in relation with the common property, separate property, rights and obligations of the parties as well as the property division upon the termination of property regime based on freedom and voluntariness, and this agreement is called the agreement on the matrimonial property regime.
However, for the agreement on the matrimonial property regime to be legally effective, it must satisfy the requirements of form and content, as follows:
Requirements of form:
According to the 2014 Law on Marriage and Family, the agreement on the matrimonial property regime must be established before marriage, in writing and be notarized or certified.
Requirements of content:
The agreement on the matrimonial property regime shall include the following basic contents:
- Property determined as common property and separate property of the husband and wife;
One of the mandatory contents of the agreement on the matrimonial property regime is the content related to the determination of ownership rights to property. Accordingly, the spouse can reach an agreement on the determination of property by one of the following methods:
(i) Matrimonial property includes common property and separate property of husband and wife;
(ii) There are no separate property and all property created before marriage or during the marriage period are common property;
(iii) There are no common property and all property created before marriage or during the marriage period are the separate property of such party;
(iv) Property is determined as otherwise agreed by husband and wife.
- Rights and obligations of the husband and wife toward common property, separate property, and related transactions; property to meet the family’s essential needs;
This content may include the regulations on:
(i) common rights and obligations of husband and wife with respect to common property, for transactions entered into by husband and wife, obligations towards common children as well as for essential family needs; the obligation of compensation for damage which is prescribed by law as a common obligation of husband and wife;
(ii) each party’s right to possess, use and dispose of its own property and separate property obligations;
(iii) obligation to provide information about the agreed matrimonial property regime when establishing and performing transactions with a third party.
- Conditions, procedures and principles of the property division upon termination of the property regime;
The parties may agree on the property division upon the proportion contribution of each party to the common property or the common property may be divided into two equal parts, one for each party.
- Other related contents
Besides the above primary contents, husband and wife may agree on other contents such as support for parents, children,… or other contents in relation with the matrimonial property regime satisfying the needs and situation of both parties.
Modification and supplementation of the agreement on the matrimonial property regime
Although the agreement on the matrimonial property regime must be established before marriage, however, during the marriage period, if the parties realize that the contents of the agreement are not suitable with the actual circumstances and/or the parties wish to modify, supplement any content of the agreement or change the applicable matrimonial property regime as the statutory property regime, such modification, supplementation can be implemented. The modification, supplementation of the agreement on the matrimonial property regime must be in writing and notarized or certified and it shall take effect from the date of notarization or certification.
Property rights and obligations arising before the time of modifying and supplementing the matrimonial property regime must remain legally valid, unless otherwise agreed by the spouse.
Above is an article about the agreement on the matrimonial property regime according to Vietnamese law, if you have any questions or any other legal advice, please contact KAV Lawyers by the contacts below:
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