Husband and wife have the right to agree to establish a regime of marital property to apply to the possession, use and disposition of marital property

Legal grounds:

• Law on Marriage and Family 2014.

The matrimonial property regime under the agreement is a document expressing the principles governing the possession, use and disposition of property of husband and wife.

When implementing the property regime of husband and wife under the agreement, but there are issues that have not been agreed upon or are unclear, the provisions of the statutory property regime shall apply.

1. How is the property regime of husband and wife determined?

Pursuant to Article 47 of the Law on Marriage and Family 2014 the husband and wife’s property regime shall be established from the date of marriage registration and must:

• Formed before marriage;
• Made in writing, notarized or authenticated.

Pursuant to Article  48 of the Law on Marriage and Family 2014, the basic contents of the document on the husband and wife’s property regime include:

• Property is identified as common property, separate property of husband and wife;
• Rights and obligations of husband and wife with respect to common property, separate property and related transactions; property to meet the family’s essential needs;
• Conditions, procedures and principles for property division upon termination of the property regime;
• Other relevant content.

2. Can husband and wife amend the husband and wife regime?

With the nature of a civil agreement, the husband and wife have the right to amend and supplement the agreement on the property regime.

In addition, according to Article 17 of Decree No. 126/2014/ND-CP as follows:

Article 17. Amendment and addition to the content of the property regime of husband and wife

1. In cases where the agreed upon husband and wife’s property regime is applied, during the marriage period, the husband and wife have the right to agree to amend or supplement part or all of the contents of that property regime or apply the property regime according to the law.
2. An agreement to amend and supplement the contents of the husband and wife’s property regime must be notarized or authenticated in accordance with law.

According to the above provisions, husband and wife can amend and supplement the content of the agreement on the property regime made. However, due to the document of the spouse’s property regime, it must be notarized/certified. Therefore, the content of amendment and supplement to the property regime of husband and wife must also be made in writing and notarized/certified.

3. When is the spousal property regime invalidated?

The written agreement on the husband and wife’s property regime is a civil agreement. Therefore, this document can also be invalidated according to the provisions of  of Clause 1 Article 50 of the Law on Marriage and Family 2014 as follows:

• Failure to comply with the valid conditions of civil transactions;
• Violating one of the provisions of Articles 29, 30, 31 and 32 of the Law on Marriage and Family 2014;
• The content of the agreement seriously violates the right to alimony, inheritance and other lawful rights and interests of parents, children and other family members.