Division of land use rights upon divorce

In fact, the division of land use rights upon divorce is similar to dividing the common property of husband and wife. 

1. In which case is land use right to be considered as common property?  

1.1 According to the Vietnamese law 

Based on the provisions on common property of husband and wife in Article 33 of the Law on Marriage and Family 2014 and Decree 126/2014/NĐ-CP detailing a number of articles and measures to implement the Law on Marriage and Family, the land use rights acquired during the marriage will be common property when: 

• Land is allocated by the State without a land use levy or with a land use levy for the wife and husband. 

• To be leased land by the State (the money used to pay the land lease is a common property) 

• To receive the transfer of land use rights (the money paid to the transferor is a common property) 

• Inherited in common, donated in common. 

• Land use rights is a separate property but there is an agreement to be common property.

• The right to use land is obtained by benefits and income arising from the separate property of husband and wife. 

• If there is no evidence to prove that it is separate property, the land use right is a common property 

1.2 According to the agreement of wife and husband 

During the marriage period, the law allows the husband and wife to choose the property regime according to the agreement (Article 28 of the Law on Marriage and Family 2014). At that time, the division of property will comply with the agreement if such agreement is established in accordance with the law. 

2. Principles of common property settlement upon divorce 

Pursuant to Article 59, Law on Marriage and Family 2014, the common property shall be divided in half but taking into account the following factors: 

• The circumstances of the family, of husband and wife after divorce; the state of legal capacity, capacity for civil acts, health, property and ability to work to generate income after divorce of the spouses as well as of other family members to which the husband and wife have personal rights and obligations and property in accordance with the Law on Marriage and Family. The party facing more difficulties after the divorce is entitled to a larger share of the property than the other party or is given priority to receive the type of property to ensure the maintenance and stability of life. 

• Efforts to contribute to the creation, maintenance, and development of common property mean the contribution of separate property, income, households, and labor of husband and wife in creating, maintaining, and developing the common property. A spouse who stays at home to take care of children and family shall be regarded as income-generating labor. 

• To protect the legitimate interests of each party in production, business, and career activities means that the division of common property of husband and wife must ensure that husband and wife who are currently active in their career can continue to work to generate income and must pay the other party for the difference in property value. 

• The faults of each spouse in the infringement of spousal rights and obligations. 

3. Division of land use rights upon divorce 

- For agricultural land for annual crops and aquaculture 

• Both parties have the need and conditions to directly use the land, it shall be divided by agreement, otherwise agreed to request the Court to settle according to Article 59 Law on Marriage and Family 2014

• If only one party has the need and conditions to directly use the land, that party may continue to use it, but must pay the other party for the value of the land use rights that they are entitled to. 

• Husband and wife have the right to use agricultural land for annual crops and aquaculture together with the family, upon divorce, land use rights of the husband and wife are separated and divided as above.  

- Agricultural land for planting perennial crops, forestry land for afforestation, and residential land shall be divided according to the provisions of Article 59, Law on Marriage and Family 2014. 

- For other types of land, it shall be divided according to the provisions of the land law. 

4. Divorce lawyers service: 

Specifically, after receiving all the information and documents provided by the client, our lawyers will conduct the following tasks:

• Research all information and records provided by the client.

• Consult, and discuss the request to be resolved.

• Compose and prepare documents, they are necessary and correspond to the lawsuit request of the clients.

• Appointing Lawyers to work with the Court and in working sessions to protect the rights and interests of clients. 

• Represent the clients to work and resolve all the problems relating to the issues clients. 

• Publicize the processing of records, and regularly update information with clients so that the parties can monitor the work together.​

>>> Read more: Principles of settlement of common property upon divorce

>>> Read more: Disputes Over The Common Property In Divorce

​For further information, please contact us via contact@apolo.com.vn or Hotline: (+84) 903.419.479

​APOLO LAWYERS