IS THE PROPERTY CONSIDERED THE COMMON PROPERTY IF IT IS UNDER A SPOUSE’S NAME?

Currently, there are many disputes in the field of marriage and family, including disputes over common property. Many difficult and long-term disputes related to property formed during marriage but there is a name of a partner on the certificate of ownership. Is it necessary to have the evidence on the ownership or based on the name in the certificate? 
It is stipulated in Article 33 of the Law on Marriage and Family 2014 on the Common property of husband and wife:

"1. The common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.

The land-use rights obtained by a spouse after marriage shall be the common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.

2. The common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.

3. When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property."

It is stipulated in Article 43 of the Law on Marriage and Family 2014 on the separate property of husband and wife:

"1. Separate property of a spouse includes property owned by this person before marriage; property inherited by or given separately to him/her during the marriage period; property divided to him/her under Articles 38,39 and 40 of this Law; property to meet his/her essential needs and other property under his/her ownership as prescribed by law.

2. Property created from separate property of a husband or wife is also property of his/ her own. Yields and profits arising from separate property during the marriage period must comply with Clause 1, Article 33, and Clause 1, Article 40, of this Law."

Moreover, it is stipulated at Point b, Section 3 of Resolution No. 02/2000/NQ-HDTP dated December 23, 2000 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of the Law on Marriage and Family Year 2000:

"In order to protect the legitimate rights and interests of the parties, in cases where the property acquired by a spouse during a marriage is required to be registered for ownership and there is only a spouse's name in that certificate. If there is no dispute, it is the common property of the spouse. If there is a dispute over that property, the person named in the ownership certificate must prove that this property is inherited separately, given separately during the marriage or this property is derived from the property source according to Clause 1, Article 32 (for example: inheriting a sum of money separately and using this money to buy himself a motorbike but he does not add it into the common property of the spouses). In cases where this disputed property cannot be proved to be private property, according to Clause 3, Article 27, such property is the common property of husband and wife."

Thus, referring to the combination of the above, it is understood that:

- If there is no dispute over that property: It is the common property.

- If there is a dispute over that property: The person whose name is in the certificate must prove the source of that property such as being inherited separately, given separately or getting it from a separate property. If this disputed property cannot be proved that it is the separate property, it will be considered common property.

Thus, in the marriage period, a property is not considered a separate property even though it is registered under a spouse name. To avoid disputes over the property, husband and wife should negotiate clearly about the property under Article 28 of the Law on  Marriage and Family 2014.

Hoang Thuy Quynh

FDVN Law Firm.

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