CHẾ ĐỘ TÀI SẢN CỦA VỢ CHỒNG THEO THỎA THUẬN TRONG HÔN NHÂN CÓ YẾU TỐ NƯỚC NGOÀI / AGREEMENT ON MATRI

Recently, matrimonial property relations in marriages are receiving increasing attention and are being established within the context of integration with international law. In many countries around the world, regulations on the matrimonial property regime are clearly and specifically defined, widely known as a “Prenuptial Agreement”. Accordingly, the Law on Marriage and Family 2014 of Vietnam has also recognized the agreement on the matrimonial property regime, entitling parties to establish an agreement on such property regime before getting married.

However, Vietnamese law has not clarified the definition, as well as the agreement’s content. The article shall mention legal issues upon the establishment of an agreement on the matrimonial property regime in marriages involving foreign elements in Vietnam as follows: 

1. Vietnamese law on the agreement on the matrimonial property regime 

Agreement on the matrimonial property regime is a legal regime under which two parties, before registering their marriage, have the freedom to agree in writing on the establishment, management, use, disposal, and division of property during marriage, instead of automatically applying the statutory property regime. This mechanism reflects the principle of freedom and voluntary commitment and agreement between the parties in a marital relationship, while simultaneously creating a legal basis to protect the property rights of each party. 

Article 47 of the Law on Marriage and Family 2014 (LMF 2014) stipulates that in case two parties getting married select the agreed property regime, this agreement shall be made in writing before their marriage and be notarized or certified, and take effect on the date of marriage registration. 

This means Vietnamese law does not prohibit and recognizes the agreement on the matrimonial property regime before marriage. Accordingly, the establishment of the agreement on the matrimonial property regime shall meet the following conditions: 

First, an agreement on the matrimonial property regime shall be made before getting married. LMF 2014 provides two matrimonial property regimes during marriage: (i) property regime under the laws; and (ii) property regime under the agreement. If both parties do not agree on the property regime before marriage, the property regime under the law applies. 

Second, the agreement on the matrimonial property regime shall be made in writing and notarized or certified. By this form, the matrimonial property regime has a significant role in the determination of separate assets and common assets of each party during the marriage. If disputes arise between parties and the third party when performing transactions related to the spouses’ common or separate assets, this condition helps the parties comply with the agreement and restricts disputes or ensures the agreement’s effectiveness. 

Third, the matrimonial property regime under the agreement takes effect on the date of marriage registration. For the purpose of determining parties’ assets during the marriage mentioned above, the agreement shall only become effective upon the marriage registration. Therefore, if the marriage is registered illegally as prescribed in Article 8 of the LMF 2014, the agreement shall not be effective even though it is made before marriage registration. 

In marriage with foreign elements, the matrimonial property regime under agreement is more common as a party in the marriage is a foreigner from another country, which has more legal documents stipulating such regime more specifically, accurately, and commonly. 

Accordingly, in England, France, America, etc., the matrimonial property regime is understood as a “Prenuptial Agreement”, which is the agreement agreed upon by parties intending to get married to alter or confirm the legal rights and obligations under marriage law, which terminates upon the parties’ divorce or death. The content of a Prenuptial Agreement typically includes provisions on property division, spousal and child support, as well as child custody rights in the event of a divorce.  

The adjustment scope of this agreement is wider than the agreement on the matrimonial property regime under Vietnamese law, which allows spouses to agree on issues related to the assets without including other rights and obligations such as caring rights, child custody, etc., or asset division after divorce. 

As a result, to ensure compliance with Vietnamese law on the matrimonial property regime under agreement in marriage with foreign elements, and the effectiveness of the agreement in Vietnam, parties shall establish an agreement on the matrimonial property regime before getting married in writing, notarized or certified, and include appropriate content to the law on marriage and assets. 

2. Agreement content on matrimonial property regime 

Article 48 of LMF 2014 specifies the basic content of the agreement on matrimonial property regime as follows: 

First, determination of common and separate assets of spouses. Parties have the right to determine their assets before marriage as separate assets, or assets arising from such separate assets belonging to each party’s ownership right, and freely dispose, use, and manage without the other’s consent; and the assets during marriage are determined as common assets such as movable property and real estate established from both parties’ contribution or by other agreements. 

Second, regulations on spouses’ rights and obligations to common assets, separate assets, and relevant transactions; assets to ensure essential needs of the family. The agreement shall clearly determine ownership, use, disposal and management rights of the assets to parties for spouses’ common and separate assets, as well as obligations of each party to such assets. Besides, the requirement for an agreement on the portion of the property secured for the family’s essential needs is to avoid cases where the parties shirk their family responsibilities, particularly when they have only agreed on separate property without generating any common property. 

Third, conditions, procedures, and principles for assets division upon termination of property regime. To restrict disputes from occurring upon the termination of property regime, the law requires spouses, when establishing an agreement on matrimonial property regime, to consider method of asset division. According to the LMF 2014, assets shall be divided by common property division during marriage or agreed upon by spouses. In the event of disputes on asset division upon divorce, the Court usually prioritizes spouses’ agreement. 

In addition to the aforementioned content, the law also regulates that parties may agree on other content related to the matrimonial property regime appropriate to the parties’ demand and applicable law on marriage and assets. 

Furthermore, Article 49 of the LMF 2014, guided by Article 17 and Article 18 of Decree No. 126/2014/ND-CP, entitles parties to amend and supplement the content of the matrimonial property regime. If the agreement on matrimonial property regime is applied, during marriage, spouses have the right to amend or supplement a part of or the entire content of such property regime or apply a property regime under the law. The amendments and supplements to the agreement are also established in a written document with notarization or certification and take effect on the date of notarization/certification. The rights and obligations arising before the effective time of amendment and supplement shall remain valid, unless otherwise agreed upon by the parties on the termination/amendments. 

In conclusion, agreement on matrimonial property regime in marriage with foreign elements does not encompass and is narrower in scope than the Prenuptial agreement specified in countries worldwide. This agreement only includes issues related to the assets during marriage, such as determination of common and separate assets; rights and obligations of parties to the common and separate assets; and other agreements. 

3. Inadequacies of agreement on matrimonial property regime in marriage with foreign elements 

Although Vietnamese law has recognized the agreement on matrimonial property regime, in practice, the application of such agreement to marriages with foreign elements remain inadequacies due to the inconsistent to the international laws. 

3.1. Foreigners are not entitled to be named in the Land Use Right Certificate 

According to Article 4 of the Land Law 2024, which defines subjects eligible to be land users in Vietnam, foreign individuals are excluded from holding real estate ownership on the Land Use Rights Certificate. This creates a paradox in agreements on matrimonial property regime in cases where the couple establishes real estate as common property, yet the title can only be registered under the name of the Vietnamese spouse - unless the property is residential housing (an apartment unit or an individual house within a commercial housing project, in accordance with Article 17 of the Housing Law 2023). 

Accordingly, upon the establishment of common property, which is real estate, it is necessary to save the invoices and the certificate of house land purchase from both spouses, to ensure the division is appropriate with the agreement, as well as the law thereafter. 

3.2. Vietnamese law does not adjust assets outside Vietnamese territory 

In a marriage relation with foreign elements, if a party, who is a foreigner, establishes agreement on matrimonial property regime, it may arise that separate property is held abroad, such as investment accounts abroad, stocks of foreign companies, cryptocurrency, etc. In such cases, even if the agreement is made before marriage, the recognition and enforcement of the agreement are based on the law of the country where the assets are held. 

Therefore, Vietnamese law only recognizes separate assets of foreigners before marriage if such assets are held in Vietnam (stocks of companies located in Vietnam, investment accounts opened in Vietnam, House Ownership Certificate in Vietnam, etc.); other assets held outside Vietnamese territory shall not be recognized and adjusted upon disputes on asset division. Then, the asset resolution shall be based on the law of the country where the assets are held. 

3.3. Cases requiring procedures for the renunciation of matrimonial common property 

In practice, in some cases, the competent authorities may request the wife or husband to establish a document renouncing spouses’ common property, even though the parties have made agreement on matrimonial property regime before. 

For example, when establishing separate property are real estate (land, house, etc.), parties still need to conduct renunciation procedures in the notary office. Such procedures are performed in a written document, signed and notarized in the notary office to ensure such assets are separate assets of the wife/husband. 

Therefore, the LMF 2014 has recognition of the agreement on matrimonial property regime to be in accordance with international law on marriage and asset relations, and to ensure parties’ free rights in marriage relations with foreign elements. However, regarding marriage relations with foreign elements, upon a foreign party, there appear to be inadequacies in practice, and it becomes inconsistent with international law on such regime. 

The author recommends refining the legislation to achieve synchronization and consistency between marriage law and property laws governing land and housing. In addition, it is necessary to supplement regulations on handling overseas assets, as well as mechanisms for recognizing cross-border property agreements, in order to integrate with international laws on marriage and property.