I. Regulations on common property of husband and wife:

Common property of husband and wife is stipulated in Article 33 of the 2014 Law on Marriage and Family, as follows:

1. Common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, profits and profits arising from separate property and other legal income during the marriage, except for the cases stipulated in Clause 1, Article 40 of this Law; property that husband and wife jointly inherit or are jointly gifted and other property that husband and wife agree is common property.

The right to use land that husband and wife acquire after marriage is common property and is the common property of husband and wife, except in cases where the husband or wife inherits separately, is separately gifted to each other or is acquired through a property transaction.

2. Common property of husband and wife is under joint ownership, is used to ensure the needs of the family and fulfill the common obligations of husband and wife.

3. In case there is no basis to prove that the property being disputed by the husband and wife is the separate property of each party, that property is considered common property.

II. Regulations on division of common property during marriage

Pursuant to Article 38 of the 2014 Law on Marriage and Family, the provisions on division of property during marriage are as follows:

1. During marriage, spouses have the right to agree to divide part or all of the common property, except for the cases specified in Article 42 of this Law; if they cannot reach an agreement, they have the right to request the Court to resolve.

2. The agreement on division of common property must be made in writing. This document is notarized at the request of the spouses or according to the provisions of law.

3. In case the spouses request the Court to resolve the division of common property of the spouses according to the provisions of Article 59 of this Law

III. Principles for settling property of spouses upon divorce

The principles for settling common property of spouses upon divorce are stipulated in Article 59 of the 2014 Law on Marriage and Family, as follows:

1. In the case of the statutory property regime of spouses, the settlement of property shall be agreed upon by the parties; if no agreement is reached, the Court shall settle the matter according to the provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law.

2. The common property of spouses shall be divided in half, taking into account the following factors:

a) The circumstances of the family and of the spouses;

b) The contributions of the spouses to the creation, maintenance and development of the common property. The labor of the spouses in the family shall be considered as income-generating labor;

c) Protect the legitimate interests of each party in production, business and occupation so that the parties have conditions to continue working to generate income

d) The fault of each party in violating the rights and obligations of husband and wife.

3. The common property of the husband and wife is divided in kind, if it cannot be divided in kind, it is divided according to value; the party receiving the property in kind with a value greater than the part they are entitled to must pay the other party the difference.

4. The separate property of the husband and wife belongs to that person, except in cases where the separate property has been incorporated into the common property according to the provisions of this Law.

In the case of a merger or mixing of separate property with common property, if the husband and wife request a division of property, they will be paid the value of their property contributed to that property, unless the husband and wife have another agreement.

5. Protect the legitimate rights and interests of wives, minor children, adult children who have lost civil act capacity or are unable to work and have no assets to support themselves.

6. The Supreme People's Court shall preside over and coordinate with the Supreme People's Procuracy and the Ministry of Justice to guide this Article.

Accordingly, when resolving the division of the common property of spouses, the court handling the divorce case shall apply the provisions of this Article to divide the common property of spouses so that both parties can enjoy the portion of the property they will enjoy after the divorce process is completed.

IV. Some problems arising from the division of common property during marriage

When resolving cases of dividing common property of spouses during marriage, the following problems are often encountered:

1. The problem of determining the factor of the husband and wife's contribution to the creation, maintenance and development of the common property upon divorce.

The establishment of factors when dividing common property of spouses upon divorce such as contribution has not been specifically regulated by law on division according to contribution, which often causes difficulties in the adjudication of the Court. In practice, there have been many Marriage - Family cases related to the division of common property of spouses upon divorce, often with prolonged appeals and protests due to the provision of information, collection of evidence proving the origin of the common property of spouses and common obligations not being complete and clear.

2. The issue of dividing the right to use land given by parents

Land use rights are a valuable asset and have important meaning for couples. Therefore, disputes related to land use rights when couples divorce are always fierce. In reality, there are many cases where parents give land use rights to their children and spouses but do not comply with the formalities prescribed by law. For example, giving but only verbally without any written confirmation, notarization or certification. When the couple's life is still happy and harmonious, it is not a problem, but when the couple is no longer happy and leads to divorce, the parents deny the gift or say that it is only given to their daughter or son or just lent for business, this causes a lot of damage and is no longer fair to the parties and causes confusion for the court.

3. The issue of determining the common property and separate property of the couple.

Determining the common property and separate property of spouses is always an extremely complicated issue, the provisions of the law are not yet specific, clear and quite vague. In the process of resolving the case, the Court still encounters many difficulties. In practice, the issue of determining whether the disputed property that needs to be divided is the common property or the separate property of the spouses is extremely important. Correctly determining whether the property that the spouses are disputing is common property or separate property will first help to choose the right principle to apply to the division, on the other hand, the disputes will be thoroughly resolved and the property rights of both spouses will be protected. In the event that there is no basis to prove that the disputed property of the spouses is the separate property of each party, that property is considered common property. That is, whoever claims that it is his or her separate property has the obligation to prove it. However, in reality, assessing evidence to determine whether property is private or joint is difficult, mainly based on the subjective judgment of the judge.

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