FACTOR OF FAULT IN THE DIVISION OF COMMON MARITAL ASSET UPON DIVORCE

Legal situation:

My husband and I got married and acquired a property, which is a house and land in City X. Now that my husband has an affair, I want to get a divorce. I would like to ask, since the divorce is due to my husband's fault, will I be entitled to a larger share of the assets?

FDVN’s Opinion:

According to Article 59 of the 2014 Law on Marriage and Family and Point d, Clause 4, Article 7 of Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP dated January 6, 2016, issued by the Supreme People's Court - the Supreme People's Procuracy - the Ministry of Justice, guiding the implementation of certain provisions of the 2014 Law on Marriage and Family, the common property of spouses upon divorce, in principle, will be divided according to the agreement between the parties.

In cases where no agreement is reached, the Court will decide to divide the assets equally, but taking into consideration the following factors: the circumstances of the family and of each spouse; the contributions of each spouse in creating, maintaining, and developing the common assets; the protection of each party's legitimate interests in production, business, and professional activities to ensure that both parties can continue working to generate income; and the fault of each party in violating the rights and obligations of the spouses. The fault element of each party in violating the rights and obligations of the spouses refers to the fault of either the husband or the wife in violating personal and property-related rights and obligations, which leads to the divorce. For example, in cases where the husband commits domestic violence, is unfaithful, or squanders the assets, the Court must consider the husband's fault when dividing the common property to ensure the legitimate rights and interests of the wife and minor children. 

Therefore, if one party can prove that the other party has violated the personal and property-related rights and obligations of the spouses, leading to the divorce, it will also serve as a basis for the Court to consider and decide on the division ratio of the marital assets upon divorce.

Lawyer Phạm Thảo  - FDVN Law Firm

----------------------------------------------------------------------------------------------------------------------