Contents
- I. Definition
- II. Basic contents of a matrimonial property regime according to agreement
- III. Cases in which the matrimonial property regime according to agreement is invalid
- IV. Matrimonial property regime according to agreement in case annulment of illegal marriage or cohabiting as husband and wife without marriage registration
I. Definition
Since the Law on Marriage and Family 2014 took effect, besides the statutory property regime, there is also a parallel regime, which is called “Matrimonial property regime according to agreement”.
Specifically, the matrimonial property regime according to agreement has not yet been defined by the legislator, but it can be understood as a set of rules governing property relations between husband and wife during the marriage period.
Regarding the time of establishment: Must be made before marriage registration.
Regarding the effective time: Being effective from the time of marriage registration.
Regarding the form: Notarized or authenticated document form.
II. Basic contents of a matrimonial property regime according to agreement
The basic contents of an agreement on the property regime include:
“a) Property determined as common property and separate property of the husband and wife;
b) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;
c) Conditions, procedures and principles of property division upon termination of the property regime;
d) Other related contents”.
About the property, detailed agreements include one of the following:
“a) Matrimonial property includes common property and separate property of husband and wife;
b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;
c) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse; or
d) Other different agreement”.
Attention: For matters arising in the implementation of the agreed property regime which have not been agreed or unclearly agreed by husband and wife, Articles of Law on Marriage and Family 2014 and corresponding provisions of the statutory property regime shall apply.
III. Cases in which the matrimonial property regime according to agreement is invalid
Pursuant to Article 50, Law on Marriage and family, an agreement on the matrimonial property regime shall be declared to be invalid by a court when
Firstly, failing to comply with the validity conditions of the transaction specified in the Civil Code and other relevant laws.
Pursuant to Article 117, Civil code 2015:
“1. A civil transaction takes effect when meeting following conditions:
a) Participants in the transaction have legal personality and/or legal capacity in conformity with such transaction;
b) Participants in the transaction act entirely voluntarily;
c) The purpose and contents of the transaction are not contrary to the law and/or social ethics.
The forms of civil transactions shall be the conditions for its effectiveness in cases where it is so provided for by law”.
Moreover, according to Clause 1, Article 8, Law on Marriage and family 2014:
“1. Boys and girls can get married when meeting following conditions:
a) The man is full 20 years or older, the woman is full 18 years or older;
b) The marriage is voluntarily decided by the man and woman;
c) The man and woman do not lose the civil act capacity;
d) The marriage does not fall into one of the cases prescribed at Points a, b, c and d, Clause 2, Article 5 of this Law”.
To sum up, in the event that a man and woman who are under the age of marriage have an agreement on the matrimonial property regime, this agreement will be void. Because one of the parties does not have full civil legal capacity.
Secondly, the agreement on the property regime of husband and wife is violated in one of the provisions of Articles 29, 30, 31 and 32 of the Law on Marriage and family 2014.
It violates principles as following:
1. Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor.
2. Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.
3. When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.
4. Husband and wife have the right and obligation to make transactions to meet their family’s essential needs.
5. The establishment, making and termination of transactions related to the home being the sole domicile of husband and wife shall be agreed by both of them. In case the home is under the separate ownership of the husband or wife, the owner has the right to establish, make and terminate transactions related to that property but shall ensure domicile for the couple.
6. In transactions with third parties in good faith, the spouse who is the holder of the bank or securities account shall be regarded as the person having the right to establish and make transactions related to that property. In transactions with third parties in good faith, the spouse who is possessing a movable asset which is not required by law to be registered for ownership shall be regarded as the person having the right to establish and make transactions related to that asset in case there are rules on protection of third parties in good faith;
Thirdly, Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members”.
Therefore, by these provisions, there can be above three reasons for the Court to declare an agreement on the property regime between husband and wife is void.
IV. Matrimonial property regime according to agreement in case annulment of illegal marriage or cohabiting as husband and wife without marriage registration
Pursuant to Clause 3, Article 12 and Article 16, Law on Marriage and family, in case of annulling illegal marriage, the legal consequence is similar:
“1. Property relations, obligations and contracts between a man and woman cohabiting as husband and wife without marriage registration shall be settled under the partners’ agreement. In case there is no agreement, they shall be settled in accordance with the Civil Code and other relevant laws.
2. The settlement of property relations must ensure lawful rights and interests of women and children. Housework and other related work to maintain the cohabitation shall be regarded as income-generating labor”.
Regarding personal relations: The State will not recognize two people who are illegally married as husband and wife. Therefore, between them, there are no rights and obligations. From the date on which the court’s decision on the annulment of an illegal marriage takes legal effect, the two married parties must terminate their relationship as husband and wife.
Regarding the relationship of property, obligations, and contracts between the two parties in an illegal marriage: Because the illegal marriage is annulled, the two cannot be recognized as husband and wife. Therefore, the property relations, obligations, and contracts between them are settled as in the case of male and female cohabiting as husband and wife.
According to the provisions of the Civil Code 2015, the private property of each party will belong to that person, but the person with the separate property must prove that it is his/her own property. If the person having separate property cannot prove that it is their own property, this property is determined to be the common property of the two people.
Rights and obligations between parents and children: The court’s annulment of an illegal marriage does not affect the rights and obligations of parents towards their children. Because the rights and obligations between parents and children are regulated by law regardless of the legality of the marital relationship between parents. The rights and obligations of parents and children shall be settled according to provisions on rights and obligations of parents and children upon divorce.
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