— DIVISION OF COMMON ASSETS–
Divorce disputes can be a complicated process, and especially when the process involves foreigners, in addition to different legal and cultural aspects, it will lead to many risks for foreigners. Divorce disputes involving foreign elements often involve two main issues: requests for division of common property and requests for direct custody of children. In this article, HMLF will focus on analyzing common risks in disputes on requesting the division of marital property and solutions so that foreigners can be somewhat assured in protecting their legal rights and interests regardless of whether you marry or divorce your Vietnamese spouse in Vietnam.
a. For assets that are land use rights:
According to the provisions of Vietnamese law, in Clause 3, Article 186 of the Land Law 2013 and Clause 1, Article 159 of the Housing Law 2014, foreigners are not allowed to have land use rights certificates, ownership of houses and other assets attached to land in their names. But foreigners can have their name on the certificate of ownership of housing for apartments and individual houses in housing investment projects.
The certificate of land use rights, ownership of houses and other assets attached to land is the only basis to determine ownership of the land plot purchased by the couple so that the decision on joint or separate property in divorce disputes regarding property division requests. However, as analyzed above, Vietnamese law does not allow foreigners to have their names on certificates of land use rights, ownership of houses and other assets attached to land. So, what do foreigners need to do to prove that they contributed part of the money to buy that plot of land and that it is common property that needs to be divided upon divorce?
Firstly, if contributing money to buy land by bank transfer, foreigners should transfer money from their personal account to their spouse with the transfer content, for example: “Transfer money to buy land plot No. 1, Map No. 1 with the area of 200m2” and store detailed messages about transferring money to buy this plot of land on SMS or voicemail on other social networking platforms.
In case, the foreigner himself pays money into his personal account at the Bank and authorizes his/her spouse to withdraw money from this personal account for a period of time for the purpose of receiving land use rights transfer, this authorization should be made in writing and notarized and authenticated (Notarized at Notary Offices and authenticated at People’s Committees at all levels).
Secondly, if contributing money to buy land in cash, foreigners should write a receipt and ask their spouse to confirm the amount received and sign the paper. Vietnamese law does not require the delivery and receipt of money to be notarized or authenticated, so a handwritten receipt is still legally valid when it meets all the conditions for civil transaction validity specified in the 2015 Civil Code.
b. For property that is a house attached to land use rights
According to item a. mentioned above, except for houses belonging to apartments and individual houses in housing construction investment projects in which foreigners are named in the house ownership certificate, then when contributing money to build a house, foreigners should pay attention to the following issues:
- Design (if any), and construction of housing: a written contract should be drawn up and both husband and wife should sign it. The purpose of this is so that the construction party can testify that a spouse contributed to the construction of the house.
- Paying for construction costs, purchasing materials and other valuable items in the house: you should keep invoices and documents of the person directly/indirectly paying and purchasing these assets.
The above is experience drawn from the practice of adjudicating disputes requiring division of common marital property involving foreign elements. Hopefully, these shares can partly help readers understand and equip themselves with the knowledge related to assets formed before and after marriage, specifically real estates which are assets of great value.
