When a husband and wife divorce, they have the right to agree on the division of property by themselves, if they cannot reach an agreement, they have the right to request the court to settle
Legal grounds:
- Law on Marriage and Family 2014.
We received the following question:
I want to get a divorce from my husband, but the property issue has not been agreed, I am a woman but my income is quite high, and my husband has a lower salary than me. I want to ask if the property is divided, how will it be?
Property division is an important issue when resolving a divorce case. A divorce case can be prolonged if the dispute over property is complicated and the parties cannot agree on a division plan.
Article 59 of the Law on Marriage and Family 2014 stipulates some general principles for property division upon divorce. As follows:
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Husband and wife have the right to agree on the division of property
On the basis of civil law, husband and wife have the right to agree on all issues in the divorce case, including the division of property. Then the spouses can ask the court to recognize these agreements. Unless such agreement is intended to evade obligations towards others.
If the husband and wife cannot reach an agreement, they can ask the court to resolve the division according to the general provisions of the law.
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Priority is given to the application of the property regime agreed upon by the husband and wife in advance
If the husband and wife cannot agree on the division of property and ask the court to settle.
In this case, if before the marriage, the husband and wife have established a property regime as agreed, then the court will divide the property according to this property regime. Except where the written agreement on marital property regime is invalid.
If there is no agreed upon property regime or the agreement on marital property regime is invalidated, the court will divide the property according to the matrimonial property regime as prescribed by law.
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Important factors determining the division of assets
In case the court applies the statutory matrimonial property regime, the property will be divided in half but taking into account the following factors:
a. Circumstances of the family and of the husband and wife:
Include family details such as:
Health, behavioral capacity, ability to work and generate income after divorce of husband and wife, whom the husband and wife are obliged to support.
The party with more difficult circumstances after the divorce can receive a larger share of the property, or give priority to receiving the assets of the means of production to help ensure life and generate income.
b. Contribution of husband and wife:
It is the contribution of husband and wife during the marriage that has created common assets for the family through activities such as business and labor of each person. In addition, the court also considers the maintenance, preservation and development of the value of common properties.
In many families, the wife can stay at home to look after the children and the husband goes to work and do business. However, by default, the wife is still considered to have income as a working person.
The party with the larger contribution will receive a larger share of the property.
c. Protect the legitimate interests of each party in production, business and profession so that the parties have conditions to continue working to generate income:
The division of common property must ensure that the husband and wife after the divorce continue to maintain and stabilize their current occupation and job to generate income for life after the divorce.
For example, if the common property is a car being used by the husband in order to generate income, he will continue to use the car for business, but the husband must pay the wife an amount equivalent to the ownership rate that the wife is divided.
The division of common property must have minimal impact on the lives of husband, wife and children.
d. The fault of each party in violating the rights and obligations of husband and wife:
The fault is the cause of divorce.
For example, the husband has gambling behavior, does not care about the family. Then this is the wrong behavior that leads to the couple having to divorce.
The court will consider each party’s fault, if one party is at fault, the other party will have priority to protect their interests and children.
