First, it is necessary to clarify, that the common property of husband and wife includes property generated by husband and wife, income from labor, production, and business activities, yields and profits arising from separate property, and other legal income during the marriage period. Property that husband and wife inherit jointly or are given as a gift and other property that the husband and wife agree on is common property.
In addition, according to the regulations, the land use right acquired by the husband and wife after marriage is also considered the common property of the husband and wife (although for some reason this property is only in the name of one spouse), except where the spouse is separately inherited, given as a gift or acquired through a transaction with separate property.
In fact, when getting a divorce, one of the most common disputes between husband and wife is determining what is separate property and what is common property. The law also stipulates that if there are no grounds to prove that the property in dispute between husband and wife is the separate property of each party, such property shall be considered as common property.
In principle, the common property of husband and wife will be divided equally, but the Court will consider the following factors to divide, specifically:
First, the family circumstances and that of the husband and wife. This means that the party who has more difficulties in terms of behavioral capacity, health, property and ability to work and generate income after divorce will be considered for a larger share of the property than the other party or to be given priority to receive the type of property to ensure the maintenance and stability of life.
Secondly, the contribution of each party to creation, maintenance and development of this property. This means that the party that contributes more will receive more. However, it must also be noted that the case where the spouse stays at home to take care of the family is considered as an employee with income equivalent to the income of the outside party.
Thirdly, the division of property must protect the lawful rights and interests of the wife and minor or adult children who are disabled, have lost their civil act capacity, have no working capacity and have no financial resources.
Fourth, the fault of each party in violating the rights and obligations of husband and wife. For cases where the spouse is the at-fault party, violating the rights and obligations of the spouses such as domestic violence, adultery, etc… The Court will also consider this factor in the settlement process.
Fifth, depending on the characteristics of the place of residence, work and conditions of the husband and wife, the Court will decide who is entitled to divide the property in kind or by value; which party receives a portion of the property in kind with a value greater than its share, must pay the other party the difference in value.
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When husband and wife cannot reach an agreement on the division of common property, they must request a court to settle.
For property that can be divided in kind, the Court will settle it so that each person can enjoy it in kind. For example, if the common property is the right to use land with enough area to separate, each spouse has the right to receive ½ of this land area.
In contrast, for assets that cannot be divided in kind, the Court will consider them based on the wishes of the spouse. In cases both parties want to receive in kind, the Court will consider to hand over to one party to receive in kind, the Court will consider to hand over to one party to receive in kind and pay the other half of the value of the property. The factors that the Court will consider to decide to assign to whom to receive the property in kind can be mentioned such as: residence, job, person who is directly managing and using the property. For example, property that is a house, the Court will consider allowing the wife who is raising children to live in, in case the husband already has another stable place to live.
In short, the common property dispute during divorce is very complicated, so it requires a lawyer to participate in order to advise and best protect the rights of the couple. Disputes over common property usually consume a lot of time and costs. Therefore, it is best when divorced, husband and wife should sit down to agree on the division of property, which not only saves time and costs but also preserves at least the relationship of husband and wife after the divorce.
In case the two parties cannot come to an agreement, it is necessary to bring the case to court for settlement, then it is extremely necessary to ask a divorce lawyer in cases of common property disputes. The lawyer will advise you on how to distinguish between common property may also be different, so the lawyers will give you all detailed advice for you to understand. In the event that two spouses have different opinions on determining whether the property is separate or common, our lawyers will provide legal support to best protect your interests.
Apolo Lawyers is very confident to help you resolve your problem relating to property division in divorce. So, please contact us via Apolo Lawyers - Solicitors & Litigators or Hotline: (+84) 903.419.479 for more information.