Division of Land Use Rights upon Divorce in Marriages Involving a Foreigner

When a marriage involving a foreign element encounters disputes over the division of land use rights, the application of the law becomes more complex compared to domestic marriages. In this context, a thorough and precise understanding of Vietnamese laws as well as international treaties to which Vietnam is a party is necessary to ensure the rights of the involved parties. This article,  Apolo Lawyers - Solicitors & Litigators (Tel:(+84) 903. 419. 479) will provide a detailed analysis of the legal provisions related to the division of land use rights upon divorce in such marriages.

1. Legal Provisions on Property Division upon Divorce

According to Article 59 of the Law on Marriage and Family 2014, the common property of spouses shall be divided equally but considering the circumstances of each party, the condition of the property, and each parties contribution to the creation, maintenance, and development of the common property. Specifically:

• Circumstances of each party: Including health, working capacity, and living needs of each party.

• Condition of the property: Including the total value of common and private property, the origin of the property, and related financial obligations.
• Contribution: Direct and indirect contributions to the creation, maintenance, and development of the common property as well as taking care of the family.

Division of Land Use Rights upon Divorce in Marriages Involving a Foreigner

2. Legal Provisions on Land Use Rights

Article 167 of the Land Law 2013 regulates the rights and obligations of land users, where land use rights are a special type of property. Land use rights are not full ownership rights but the right to use land allocated by the State for a certain period. The rights of land users include transferring, donating, inheriting, mortgaging, and contributing capital with land use rights.

3. Division of Land Use Rights upon Divorce Involving a Foreigner

In the case of divorce involving a foreign element, the division of land use rights must comply with the principles of the Law on Marriage and Family, but also consider international treaties to which Vietnam is a party. Article 127 of the Law on Marriage and Family 2014 provides:

• Application of Vietnamese law: If the division of property involves immovable property in Vietnam, Vietnamese law shall be applied.

• International treaties: If an international treaty to which Vietnam is a signatory contains provisions different from Vietnamese law, the provisions of the international treaty shall apply.

Division of Land Use Rights upon Divorce in Marriages Involving a Foreigner

4. Steps to Implement the Division of Land Use Rights upon Divorce

4.1. Agreement between the parties: The parties can mutually agree on the division of land use rights. If an agreement is reached, the parties can prepare a written agreement and notarize it at a notary office.

4.2. Court resolution: If no agreement is reached, the parties can request the court to resolve the matter. The court will consider and decide on the division of property based on the principles mentioned above.

4.3. Registration of land use rights: After the decision of the court on property division, the parties must register the land use rights at the Land Registration Office under the Department of Natural Resources and Environment where the land is located.

4.4. Tax and financial obligations: The parties must fulfill financial obligations related to the transfer of land use rights, including personal income tax (if any), registration fees, and other fees and charges as stipulated by law.

Division of Land Use Rights upon Divorce in Marriages Involving a Foreigner

5. Factors to Consider When Dividing Land Use Rights Involving a Foreign Element

Land ownership rights of foreigners: According to the Land Law, foreigners are not allowed to own land in Vietnam but only have the right to own houses attached to land use rights. Therefore, when dividing land use rights upon divorce, if the foreign party is allocated land use rights, consideration must be given to converting the form of ownership or selling the land use rights.

Legal status of the land: Land under dispute, land within a planning area, or land with other legal constraints may affect the division of land use rights.

5.1. Land Ownership Rights of Foreigners

According to the Land Law, foreigners are not allowed to own land in Vietnam but only have the right to own houses attached to land use rights. This means that when a divorce involving a foreign element occurs, if the foreign party is allocated land use rights, the following options must be considered:

• Conversion of ownership form: The foreign party can transfer the land use rights to the other party or transfer the land use rights to another person according to Vietnamese law.
• Sale of land use rights: The foreign party can sell the land use rights and share the proceeds according to the agreement or court decision.

5.2. Legal Status of the Land

• Land in dispute: If the land is in dispute, the division of land use rights will be more complex. The court needs to consider and resolve the dispute before making a decision on division.
• Land under planning: Land under state planning may affect the value and usability of the land. The parties need to understand the local land use planning to avoid unnecessary disputes and losses.
• Other legal constraints: For example, the land may be mortgaged, leased, or have other related rights and obligations that need to be resolved before the division.

Apolo Lawyers is a legal consulting service provider with a team of high quality and professional lawyers and litigation attorneys, ensuring to provide customers with a full package of legal services. For more detailed information, please contact:

Apolo Lawyers - Solicitors & Litigators

Address: No 108 Tran Dinh Xu Street, Nguyen Cu Trinh Ward, District 1, Ho Chi Minh City

Tel: (028) 66.701.709 / (028) 35.059.349

Mobile & WhatsApp 1: 0939.486.086 / Mobile & WhatsApp 2: 0908.043.086

Email: contact@apolo.com.vn

Website: www.apolo.com.vn