Is the property given during the marriage a separate or common property in divorce?

A gift received during marriage is not classified solely by the date it was given. The intended recipient, the terms of the gift and the way ownership was documented can be central when distinguishing separate property from a joint asset.

When is the given property a separate or common property?

According to the provisions of the Law on Marriage and Family, property given during the marriage will be determined as separate property or common property of spouses in divorce on case by case basis.

Common property

According to Article 33 of the Law on Marriage and Family 2014, the common property of husband and wife is as follows:

- Property is created by husband and wife;

- Income from labor, production and business activities, yields, profits arising from separate property and other lawful incomes during a period time of marriage.

- Property that husband and wife inherits jointly or are given as a gift;

- Other property agreed upon by husband and wife is common property.

- Land use rights acquired by husband and wife after marriage are the common property of husband and wife, except for cases where the spouses are separately inherited, given separately or acquired through transactions with separate property.

- In case there are no grounds to prove that the property in dispute between husband and wife is the separate property of each party, such property shall be considered as common property.”

Separate property

On the other hand, in Article 43 of the Law on Marriage and Family 2014, there are provisions on separate property of husband and wife, namely:

- Property that each person has owned before marriage;

- Property that each person inherits separately or are given separately during the marriage;

- Property is divided among husband and wife separately according to the provisions of Articles 38, 39 and 40 of this Law. The property after being divided, the yields and profits arising from it, will be owned by each person separately;

- Property serving the essential needs of the husband and wife and other property which, as prescribed by law, belongs to the husband and wife separately.

- Property is formed from separate property of husband and wife

Thus, given property is common property of husband and wife when such property is given to both husband and wife. Otherwise, given property is the separate property of a spouse when it is given to either spouse separately even during the marriage.

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

How to demonstrate a property is given separately?

According to these above regulations, to prove the given property is owned separately by each spouses, each of them needs to present documents proving that the property is in his or her own name. For example, if the given property is a land use right, the recipient needs to provide a certificate of land use right with only his or her name on it. 

In case there is no document proving that the property is in each of their own names, but there is an agreement on division of common property that recognizes the property in dispute as husband or wife, this person can use this agreement to prove their ownership of the property, but it should be noted:

- The agreement on division of common property must be made in writing, notarized or authenticated

- This agreement must not fall into the invalidity cases specified in Article 42 of the Law on Marriage and Family such as seriously affecting the legitimate rights and interests of the family and children; evading obligations...

If you cannot prove it, this is determined to be the common property of the husband and wife, the wife still has the right to ask for a division upon divorce. The jurisdiction to deal with the division of property upon divorce belongs to the Court.

>> Read more: Division of land use rights upon divorce

Legal service for demonstrating the property ownership during marriage.

• Accurately identify your property dispute;
• Give advice on how to prove your own property,
• Directly carry out legal procedures proving your private property,
• On your behalf of you to conduct with the Court and other competent authorities.

Legal assistance can include assessing the file, identifying missing records and preparing the requests and evidence for the relevant procedure. The scope and practical next steps should be agreed clearly, without promising a court result or completion date.