Question:
Dear lawyer, I have a question in the following issue, I would like to receive a lawyer’s advice! I sincerely thank you!
After getting married, aside from the shared assets between the husband and wife, do they also have the right to own their own separate property? If so, how is it specifically regulated?
Reply to consultant:
Regarding the question you asked me, I would like to answer as follows:
1.What is the separate property of husband and wife?
According to the provisions of Article 43 of the Law on Marriage and Family 2014 and Article 11 of Decree 126/2014/ND-CP, the private property of the husband and wife includes:
-Property that each person had before marriage;
-Property inherited separately or given separately during the marriage;
-Property that is divided between husband and wife separately after division of common property during the marriage period;
-Property to serve the essential needs of the husband and wife;
-Property formed from the separate property of the husband and wife;
-Yields and profits arising from the separate property of the husband and wife after division of common property;
-Property rights to intellectual property objects in accordance with the law on intellectual property;
-Property that the spouses establish separate ownership according to a judgment or decision of a court or other competent agency;
Allowances and incentives received by spouses in accordance with the law on incentives for people with meritorious services to the revolution;
Other property rights attached to the personal identity of the husband and wife.
Thus, during marriage, both the husband and wife can have their own separate property, which is owned by each person.
- What is the possession, use, and disposition of private property?
According to the provisions of Article 158 of the 2015 Civil Code, the right to possess, use, and dispose of property of the owner in accordance with the law is also known as ownership.
– Regarding the right of possession: According to the provisions of Article 186 of the Civil Code 2015, the right of possession includes the possession of the owner and the possession of a person who is not the owner, which is the subject’s holding, governing the property directly or indirectly as the holder of a right to the property.
-Regarding the right to use: According to the provisions of Article 189 of the Civil Code 2015: “The right to use is the right to exploit the utility, to enjoy the yields and profits from the property. The right to use may be transferred to another person by agreement or by law.”
-Regarding the right to dispose: According to Article 192 of the Civil Code 2015: “The right to dispose is the right to transfer property ownership, relinquish the right to own, consume or destroy property.”
According to Article 206 of the 2015 Civil Code on possession, use, and disposition of privately owned property, it stipulates: “The owner has the right to possess, use and dispose of privately owned property to serve the purpose of service demand for living, consumption, production, business and other purposes that are not illegal. The possession, use, and disposition of privately owned property must not cause damage or affect national interests, ethnic groups, public interests, and lawful rights and interests of others.
Thus, possessing, using, and disposing of private property refers to the subject’s possession and control of their property but must not be contrary to law, social ethics, cause damage, or affect the interests and rights of others. They have the right to exploit and benefit from the property to the extent permitted by law and have the right to transfer ownership of the property, waive the right to own, consume or destroy it.
- Regulations on possession, use and disposition of private property of husband and wife
3.1. Regarding the right to possess, use and dispose of separate property of husband and wife, or to enter or not to enter separate property into common property:
According to the provisions of Clause 1, Article 44 of the Law on Marriage and Family 2014, “Wives and husbands have the right to possess, use and dispose of their own property, and to enter or not enter separate property into common property.”
Accordingly, husbands and wives who have separate property have the right to decide whether or not to enter their own property into the common property of the husband and wife. According to the provisions of Article 46 of the Law on Marriage and Family 2014, the entry of separate property of husband and wife into common property is done as follows:
-According to the agreement of the husband and wife.
-If transactions related to such property must follow a certain form according to the law, then the agreement must ensure that form.
Obligations related to separate property that have been merged into common property shall be performed by common property, unless otherwise agreed by the husband and wife or otherwise provided for by law.
Thus, spouses have full decision-making power over their own property, and no one is allowed to force wives or husbands with separate property to enter their own property into the common property of the husband and wife.
3.2. Regarding the right to manage the private property of husband and wife:
According to the provisions of Clause 2, Article 44 of the Law on Marriage and Family 2014, “In cases where a spouse cannot manage his/her own property and does not authorize another person to manage it, the other party has the right to manage that property. Asset management must ensure the interests of property owners.”
Thus, when establishing ownership rights with their own property, the husband and wife will manage that property themselves. In case a spouse cannot manage their own property, they can authorize another person to manage their property. In case one spouse cannot manage by himself and does not authorize another person to manage his or her own property, the other person has the right to manage such property.
3.3. Regarding the separate obligations of husband and wife towards their own property
Clause 3, Article 44 of the Law on Marriage and Family 2014 stipulates: “Each person’s separate property obligations shall be paid from his/her own property”.
In addition to having title rights to their own property, the spouses also have obligations related to that separate property. When a husband and wife have separate obligations regarding their property, they must use their own property to pay those obligations. If the separate property of a spouse is not enough to pay off separate property obligations, payment by that person’s portion of the common property of the husband or wife may be agreed upon.
3.4. Regarding the right of husband and wife to decide on yields and income arising from separate property, which is the family’s sole source of livelihood
According to Clause 4, Article 44 of the 2014 Law on Marriage and Family: “In case a husband and wife have separate property and the yields and income from that separate property are the family’s sole source of livelihood, the disposition of this property must have the consent of the husband and wife”.
Accordingly, if a husband and wife have separate property and the yields and income from that separate property are the family’s only source of livelihood, the disposition of this property must be agreed upon by the husband and wife. This regulation is in line with reality and aims to ensure the stability of common life, and to ensure the legitimate rights and interests of other family members.
In addition, according to Clause 2, Article 24 of the Law on Marriage and Family 2014: “Husband and wife may authorize each other to establish, perform and terminate transactions according to the provisions of the Law on Marriage and Family, the Civil Code and other relevant laws, but such authorization must have the consent of both husband and wife”. In this case, a spouse who is a separate property owner has the right to authorize the other party to act on their behalf to establish, perform and terminate transactions related to such assets.
Thus, when a spouse has separate property, they are entitled to own that property separately and do not depend on the will of the other party. This shows that the law has recognized the freedom of each individual, including the right to freely possess, use and dispose of the property of husband and wife.
4.Legal basis
-Civil Code 2015
-Law on Marriage and Family 2014
-Decree 126/2014/ND-CP detailing a number of articles and measures to implement the Government’s marriage and family law.
