The division of common property of spouses which is land use rights registered in one person’s name

Question: During the marriage period, my spouse and I purchased a piece of land, and we agreed to have it registered in my wife’s name for easy transactions. Now, due to conflicts, we are getting a divorce, but my wife claims that this piece of land is solely her property since it is registered under her name. Is that correct? I would appreciate it if a lawyer could provide advice. Thank you, Lawyer!

Answer:

Thank you for submitting your question to the FDVN Law Firm. In response to your consultation requests, after researching relevant legal regulations, FDVN presents our legal opinion as follows:

According to Article 33 of the 2014 Law on Marriage and Family, regulations on common property of husband and wife are as follows:

“1. 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 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. 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 there 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.”

Next, Article 34 of this Law has regulations on registration of ownership and use rights of common property:

“1. For a common property which is required by law to be registered for ownership or use, both spouses shall be named in the ownership or use right certificate, unless otherwise agreed by the couple.

2. In case only one spouse is named in the property ownership or use right certificate, transactions related to such property must comply with Article 26 of this Law. Any dispute related to that property shall be settled under Clause 3, Article 33 of this Law.”

The land was established during the marriage, so initially, it is considered the common property of the husband and wife. If the wife wishes to establish it as her separate property, she has the obligation to prove it before the court. If there is no basis to prove that the piece of land is her separate property, then it is considered the common property of the husband and wife.

Above is the advisory opinion from FDVN related to your consultation request based on the research of legal regulations. We hope FDVN’s advisory opinion will be beneficial to you.

Lawyer Pham Thao – FDVN Law Firm

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