DETERMINING MARITAL PROPERTY AND SEPARATE PROPERTY DURING MARRIAGE - OTIS

Determining whether an asset is considered marital or separate property during marriage is crucial, as it ensures the interests of both spouses as well as third parties involved in transactions and business dealings. In this article, OTIS LAWYERS will explain how to identify marital and separate property of spouses during the marriage period.

What is Considered Separate Property of a Spouse?

a) Separate property of a spouse is defined under Article 43 of the 2014 Law on Marriage and Family, which states that:

• Separate property of a spouse includes assets that each person had before marriage, assets inherited individually, or received as a gift during marriage, assets allocated individually under Articles 38, 39, and 40 of this Law, assets that meet essential needs, and other assets that, according to the law, are individually owned by either spouse.
• Property derived from a spouse’s separate property is also considered separate property. Income generated from separate property during marriage is subject to the provisions of Clause 1, Article 33, and Clause 1, Article 40 of this Law.

b) Other separate property of a spouse according to legal provisions is stipulated in Article 11 of Decree 126/2014/ND-CP as follows:

• Intellectual property rights according to intellectual property law.
• Assets individually owned by a spouse pursuant to a court judgment or decision, or a decision by a competent authority.
• Subsidies or preferential treatment that a spouse receives according to regulations for persons who have contributed to the revolution, as well as other personal rights associated with either spouse.

Thus, separate property of a spouse includes assets held before marriage, individually inherited or gifted assets during marriage, or assets individually owned pursuant to a court judgment, among others.

When Does Separate Property Become Marital Property?

Separate property of a spouse becomes marital property if both parties have documented an agreement to convert the separate property into marital property. Article 46 of the 2014 Law on Marriage and Family provides for incorporating separate property into marital property as follows:

• Incorporation of separate property into marital property is based on the spouses’ agreement.
• If the asset requires a specific legal form for transactions, the agreement to incorporate must adhere to that form.
• Obligations associated with the incorporated property will be met using marital property unless otherwise agreed upon by the spouses or provided by law.

How to Determine Marital Property During Marriage

Marital property during marriage is defined under Article 33 of the 2014 Law on Marriage and Family as follows:

• Marital property includes assets created by the spouses, income from labor, production, business activities, as well as benefits and profits generated from separate property and other lawful income acquired during marriage, except for cases specified in Clause 1 of Article 40. It also includes jointly inherited or gifted assets, and any assets that the spouses have agreed to classify as marital property.
• Post-marriage land-use rights are also considered marital property unless the land was inherited, gifted to either spouse, or obtained through a transaction involving separate assets.
• In the absence of proof to determine that disputed property is separate, it will be presumed to be marital property.

According to Article 9 of Decree 126/2014/ND-CP, other lawful income during marriage includes:

• Rewards, lottery winnings, and allowances, except as otherwise provided in Clause 3, Article 11 of this decree.
• Assets that spouses own in accordance with the Civil Code for ownerless property, buried or sunken property, lost or abandoned property, stray animals, poultry, and aquatic resources.
• Other lawful income as defined by law.

Additionally, Article 10 of Decree 126/2014/ND-CP explains the concept of yields and profits from a spouse’s separate property as follows:

• Yields refer to natural products obtained from a spouse’s separate property.
• Profits refer to income generated by exploiting a spouse’s separate property.

Thus, marital property includes assets acquired throughout the marital period, unless designated as separate property by law or mutual agreement of the spouses.

The above are the regulations on identifying separate and marital property during marriage. We hope this article serves as a useful reference for our clients.

For any questions or comments, please contact:
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