CASE LAW DRAFT NO. 17/2024 On the determination of common property of the spouses (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 17/2024

On the determination of common property of the spouses

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 02/2022/HNGĐ-GĐT dated January 13^th, 2022, of the Judges’ Council of the Supreme People’s Court regarding the case “Dispute over divorce and division of property upon divorce” between the plaintiff, Mr. E, and the defendant, Mrs. Nguyễn Thị Ngọc C; the interested parties are Mrs. Nguyễn Thị Ngọc B and Mr. Nguyễn Kim D.

Location of the Case Law’s Content:

Paragraphs 8, 9, 10 and 11 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

One spouse enters into a contract to transfer land use rights before the marriage registration, but before that, the two parties had already completed a marriage registration declaration and held a wedding ceremony. The party transferring the land use rights acknowledges the transfer to the spouse.

– Legal Resolution:

In this case, the Court must determine that the land use rights acquired by one party through the transfer are common property of the spouses.

Relevant Legal Provisions:

Clause 13, Article 3; Article 33; Article 43; Article 59 of the 2014 Law on Marriage and Family.

Keywords:

“Common property”; “Contract for the transfer of land use rights”; “Marriage registration declaration”.

CASE DETAILS

The plaintiff, Mr. E, and the plaintiff’s authorized representative, Mrs. Lê Nguyễn Vi V, presented the following:

Mr. E and Mrs. Nguyễn Thị Ngọc C got married on August 6^th, 2013, at the People’s Committee of Bình Định Province. On November 2^nd, 2016, Mr. E filed for divorce from Mrs. C; concerning common children and common debts: there are none, and he does not request the Court to resolve these matters; regarding common property, it includes:

– Various machinery and electronic devices purchased before and during the marriage, including a refrigerator, TV, washing machine, microwave, and air compressor, with a total value of nearly VND 50,000,000. He requested the division of these property but later voluntarily withdrew this request.

– A 1,288m² area in H Village, T Commune, B District, Bình Thuận Province: the land area mentioned above was transferred to the couple by Mr. Trần Minh P and Mrs. Nguyễn Thị P1 for VND 600,000,000. The couple signed a handwritten purchase agreement with Mr. P and Mrs. P1 on October 5^th, 2013, for a total area of 1,288m² of land, but only 589.8m2 of the land had a land use rights certificate.

On October 8^th, 2013, the couple and Mr. P, Mrs. P1 went to the notary office to complete the transfer procedures for 589.8m² and made an initial payment of VND 322,000,000, with the remaining area to be transferred once the land use rights certificate was issued.

On April 8^th, 2014, Mr. P, Mrs. P1, and the couple went to the Lương P Notary Office to complete the transfer contract for 590.7m² of land for which Mr. P, Mrs. P1 had been issued a land use rights certificate. The couple had paid the full transfer amount.

However, Mrs. C twice deceived him, claiming that since he was a foreigner, he could not be named in the contract, thus allowing Mrs. C to be named, but instead, she allowed Mr. Nguyễn Kim D and Mrs. Nguyễn Thị Ngọc B (Mrs. C’s brother and sister) to be named as the buyers in the contract, specifically:

+ In the land use rights transfer contract dated October 8^th, 2013, Mr. Trần Minh P, Mrs. Nguyễn Thị P1, and Ms. Trần Thị Minh P2 (Mr. P and Mrs. P1’s daughter) transferred 589.8m² of land, Plot No. 57, Map Sheet No. 03, to Mrs. C and Mrs. B for VND 249,900,000. The contract was notarized at S Notary Office.

+ In the land use rights transfer contract dated April 8^th, 2014, Mr. Trần Minh P, Mrs. Nguyễn Thị P1 transferred 590.7m² of land, Plot No. 57, Map Sheet No. 335, to Mr. Nguyễn Kim D for VND 100,000,000. The contract was notarized at S Notary Office.

In June 2014, Mr. E and Mrs. C obtained a construction permit and built a 3B-grade house with an area of 173.85m² at an approximate cost of VND 700,000,000.

– A 600m² area in H Village, T Commune, B District, Bình Thuận Province: the land area mentioned above was transferred to the couple by Mrs. Trần Thị N for VND 280,000,000 according to a land sale agreement dated July 9^th, 2013. The parties entered into two transfer contracts as follows:

+ In the land use rights transfer contract dated July 9^th, 2013, Mrs. Trần Thị N and Ms. Trần Thị Huyền M (Mrs. N’s daughter) transferred 291.3m² of land, Plot No. 56, Map Sheet No. 3 (later issued a land use rights certificate as Plot No. 58, Map Sheet No. 335) in H Village, T Commune, B District, to Mrs. C for VND 100,000,000. The contract was notarized at S Notary Office.

+ In the land use rights transfer contract dated September 26^th, 2014, Mrs. Trần Thị N and Ms. Trần Thị Huyền M (Mrs. N’s daughter) transferred 261.4m² of land, Plot No. 67, Map Sheet No. 335 in H Village, T Commune, B District, to Mrs. C for VND 130,000,000. The contract was notarized at S Notary Office.

The funds used to purchase the aforementioned plots of land were provided by Mr. E to Mrs. C. However, due to language barriers, his trust in Mrs. C, and his status as a foreigner who could not be named on the land use rights certificate, he allowed Mrs. C to be named on the certificate. He now requests the Court to divide the common property between him and Mrs. C, which includes the 3B-grade house and the 1,888m² area of land, totaling VND 1,630,000,000.

The defendant, Mrs. Nguyễn Thị Ngọc C, presented the following:

She agrees with Mr. E’s statement regarding their marriage and the shared children. Now that Mr. E is requesting a divorce, she consents. Regarding common debt: Mrs. C and Mr. E owe Mrs. Trần Thị Tố U an amount of VND 300,000,000, for which the debt note is currently held by Mr. E; thus, she does not request the Court to resolve this debt.

Regarding common property: she asserts that the couple does not have any common property. The property mentioned by Mr. E are her personal property and those of her siblings, specifically:

– The 552.7m² area of land was purchased from Mrs. Trần Thị N using her own savings accumulated before she knew Mr. E, as evidenced by the handwritten land and house sale agreement dated July 9^th, 2013.

– The 589.8m² area of land (land use rights certificate issued by the People’s Committee of B District, Bình Thuận Province on November 15^th, 2013, in the names of Mrs. Nguyễn Thị Ngọc C and Mrs. Nguyễn Thị Ngọc B) was transferred by Mr. Trần Minh P and Mrs. Nguyễn Thị P1 to Mrs. B and herself. Mrs. B holds 85% of the total value, and she holds 15% using her personal funds acquired before marriage.

– The 590.7m² area of land (land use rights certificate issued by the People’s Committee of B District, Bình Thuận Province on May 8^th, 2014, in the name of Mr. Nguyễn Kim D) was acquired by Mr. D from Mr. Trần Minh P and Mrs. Nguyễn Thị P1 and is unrelated to her. Mr. D agreed to let her manage and use the land.

– Regarding the house: it was built using the combined funds of Mr. D, Mrs. B, and herself, with her contributing a small portion and acting as the representative manager.

She did not receive money from Mr. E to purchase the above-mentioned plots of land or to build the house as claimed by Mr. E.

The interested party, Mrs. Nguyễn Thị Ngọc B, presented the following:

In November 2013, she purchased a plot of land from Mr. Trần Minh P and Mrs. Nguyễn Thị P1 through Mrs. C. Since Mrs. C had signed a land purchase contract with Mr. P and made a deposit of VND 50,000,000, but later, due to conflicts between Mr. E and Mrs. C and their inability to afford the land, she bought the land at VND 500,000/m², for a total of VND 322,000,000, based on the area covered by the land use rights certificate.

However, as 108m² of the land within the purchased plot did not have a land use rights certificate, the parties agreed to equally share the loss, although she could not recall the exact amount. She negotiated with Mr. Trần Minh Q (Mr. P’s son) and paid the money to Mr. P’s family. The money used to buy the land came from her family’s savings, with Mrs. C only contributing the initial deposit of VND 50,000,000.

Now, she does not agree with Mr. E’s request to divide the land use rights, as it is her land, and she only had Mrs. C hold the title for convenience in transactions.

The interested party, Mr. Nguyên Kim D, presented the following:

In early 2013, after getting married, his younger sister, Mrs. C, and her husband intended to buy land in D Hamlet to build a house for business purposes but lacked the financial means, so they asked their siblings for a loan. However, due to ongoing conflicts between Mrs. C and her husband, this plan was abandoned. Subsequently, Mrs. B helped Mrs. C purchase the 589.8m² area of land from Mr. P, which already had a land use rights certificate.

The 590.7m² area of land, which was awaiting the issuance of a land use rights certificate, was intended for future consideration. He then assisted with house construction over two years. In April 2014, the remaining land was granted a land use rights certificate, and he purchased it from Mr. P and Mrs. P1 for VND 250,000,000. He paid Mr. P and Mrs. P1 at S Notary Office. This property is his personal asset, and he does not agree to Mr. E’s request for division.

The interested party, Mrs. Trần Thị N, presented the following:

On July 9^th, 2013, she and her family members agreed to transfer 600m² of land in H Village, T T Communeo Mr. E and Mrs. C for VND 280,000,000, with payments made in multiple installments. On September 26^th, 2014, the parties went to the notary office to sign the contract for the land use rights certificate. She received the transfer payment from Mrs. C and Mr. E at the notary office.

Mrs. C stated that Mr. E, as a foreigner, did not speak Vietnamese and was not permitted to receive land transfers in Vietnam, so Mrs. C signed the contract on their behalf. She confirmed the land transfer to Mr. E and Mrs. C as a couple, with Mr. E signing the transfer contract as Mrs. C’s husband, not transferring to Mrs. C individually.

The interested parties, Mr. Trần Minh P and Mrs. Nguyễn Thị P1, presented the following:

On October 5^th, 2013, they transferred 1,288m² (of which 589.8m² had a land use rights certificate, and the remaining area was awaiting certification) in H Village, T T Communeo Mr. E and Mrs. C for VND 600,000,000. The agreement was initially handwritten with Mr. E’s signature, but his name was omitted from the official contract due to Mrs. C explaining that Mr. E, being a foreigner, could not speak Vietnamese and was not allowed to be named in the contract.

They received the full transfer payment from Mrs. C, and Mr. E did not participate in the payment process. They transferred 1,288m² to Mr. E and Mrs. C as a couple, formalized in two stages: first, for the area with a land use rights certificate, with the notary coming to their home for signing by the couple and their daughter, Ms. Trần Thị Minh P2; second, for the area awaiting certification, they went to the notary office with Mrs. C and Mr. D for the signing.

As Mr. P had poor eyesight and Mrs. P was illiterate, they signed and fingerprinted as instructed by the notary. They confirmed transferring the land use rights to Mr. E and Mrs. C as a couple.

In the First-instance Marriage and Family Judgment No. 34/2017/HNGĐ-ST dated November 30^th, 2017, the People’s Court of Bình Thuận Province decided:

– To acknowledge the consensual divorce between Mr. E and Mrs. Nguyễn Thị Ngọc C. Mr. E is granted a divorce from Mrs. Nguyễn Thị Ngọc C.

– To accept the plaintiff Mr. E’s request to withdraw part of his claim concerning property such as the air compressor, refrigerator, etc., valued at VND 50,000,000. The Court will dismiss the hearing regarding the withdrawn part of the claim.

– To accept the plaintiff Mr. E’s request to divide the property upon divorce from Mrs. Nguyễn Thị Ngọc C.

– To determine that the common property of Mr. E and Mrs. Nguyễn Thị Ngọc C, created during the marriage, includes 1,888m² of land under the following Land Use Rights Certificates: BQ 214308 dated November 15^th, 2013; BS 735727 dated October 22^nd, 2014; BP 237780 dated July 22^nd, 2013; BQ 214310 dated November 15^th, 2013; BS 681961 dated May 8^th, 2014, all issued by the People’s Committee of B District.

The property also includes a 3B-grade house with a construction area of 173.85m², a floor area of 173.85m², a building height of 7.091m, with construction materials including brick walls, wooden columns, reinforced concrete columns for the corridor, ceramic-tiled balcony of 20cm width with floral patterns, wooden panel doors, wooden staircase handrails, and wooden floors. The house and land are located in H Village, T Commune, B District, Bình Thuận Province. The total value of the property is VND 3,104,426,000.

The contributions of the spouses are determined to be equal. Each party is entitled to receive property valued at VND 1,552,213,000. Mrs. Nguyễn Thị Ngọc C is granted the right to own, manage, and use an area of 1,888m² of land and a 3B-graded house with a construction area of 173.85m², a floor area of 173.85m², and a building height of 7.091m.

The house structure includes brick walls, wooden pillars, reinforced concrete corridor pillars, a 20cm wide ceramic-tiled balcony with floral frames, balustrades, Pano wooden doors, wooden staircase handrails, and wooden floors. Both the house and land are located in H Hamlet, T Commune, B District, Bình Thuận Province.

The land has been certified by the People’s Committee of B District with the following Land Use Rights Certificates: Certificate No. BQ 214308 dated November 15^th, 2013; Certificate No. BS 735727 dated October 22^nd, 2014; Certificate No. BP 237780 dated July 22^nd, 2013; Certificate No. BQ 214310 dated November 15^th, 2013; Certificate No. BS 681961 dated May 8^th, 2014.

Mrs. Nguyễn Thị Ngọc C is obligated to reimburse Mr. E the amount of VND 1,552,213,000.

Additionally, the first-instance court also ruled on court fees, interest on delayed execution, on-site inspection costs, and the parties’ right to appeal.

On December 7^th, 2017, Mrs. C, Mr. D, and Mrs. B appealed the first-instance court’s judgment regarding the division of common property.

On December 13^th, 2017, Mr. E appealed, requesting a revaluation of the house with a construction area of 173.85m² and the 1,888m² land in H Hamlet, T Commune, and exemption from court fees.

In the Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, the High People’s Court in Hồ Chí Minh City decided:

To accept the appeals of Mr. E, Mrs. Nguyễn Thị Ngọc C, Mrs. Nguyễn Thị Ngọc B, and Mr. Nguyễn Kim D. The first-instance court’s judgment is amended as follows:

a/ The common property of Mr. E and Mrs. Nguyễn Thị Ngọc C created during the marriage is determined as follows:

+ Plot No. 67, Map No. 355, located in H Hamlet, T Commune, B District, Bình Thuận Province; certified by the People’s Committee of B District with Land Use Rights Certificate No. BS 735727 dated October 22^nd, 2014, in the name of Mrs. Nguyễn Thị Ngọc C.

The provisional value of the land use rights, according to the valuation certificate of M Valuation and Information Joint Stock Company dated June 7^th, 2017, is VND 282,312,000.

+ Land area at Plot No. 57, Map No. 03, located in C Village, H Hamlet, T Commune, B District, Bình Thuận Province; certified by the People’s Committee of B District with Land Use Rights Certificate No. BQ 214308 dated November 15^th, 2013, in the name of Mrs. Nguyễn Thị Ngọc C and Certificate No. BQ 214310 dated November 15^th, 2013, in the name of Mrs. Nguyễn Thị Ngọc B.

The provisional value of the land use right, according to the valuation certificate of M Valuation and Information Joint Stock Company dated June 7^th, 2017, is VND 318,492,000.

+ A 3B-graded house built on Plot No. 57, Map No. 3, located in H Hamlet, T Commune, B District, Bình Thuận Province; with a construction area of 173.85m², a floor area of 173.85m², and a building height of 7.091m. The house structure includes brick walls, wooden pillars, reinforced concrete corridor pillars, a 20cm wide ceramic-tiled balcony with floral frames, balustrades, Pano wooden doors, wooden staircase handrails, and wooden floors.

The provisional value of the house, according to the valuation certificate of M Valuation and Information Joint Stock Company dated June 7^th, 2017, is VND 1,232,569,663.

b/ Mrs. C is granted the right to use the entire land area and own the house mentioned above.

c/ Mrs. C is required to reimburse Mr. E 30% of the land use right value, provisionally VND 180,241,200, and 20% of the house value, provisionally VND 246,514,000. In case of any increase or decrease in the value of the house and land, Mrs. C must still reimburse Mr. E 30% of the land value and 20% of the house value at the time of execution.

The total provisional value of the property Mr. E is entitled to receive is VND 426,755,000.

The total provisional value of the property Mrs. Nguyễn Thị Ngọc C is entitled to receive is VND 1,406,618,436.

Additionally, the appellate court also ruled on interest on delayed execution, on-site inspection costs, and court fees.

On May 22^nd, 2019, Mr. E submitted a petition for a review under cassation procedures regarding the aforementioned appellate judgment.

On November 23^rd, 2021, the Chief Justice of the Supreme People’s Court issued Cassation Appeal Decision No. 10/2021/KN-HNGĐ concerning the Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, of the High People’s Court in Hồ Chí Minh City in the case of “Dispute over Divorce and Division of Property upon Divorce” with the plaintiff being Mr. E and the defendant being Mrs. Nguyễn Thị Ngọc C.

The Chief Justice requested the Judges’ Council of the Supreme People’s Court to conduct a cassation review, vacate the Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, of the High People’s Court in Hồ Chí Minh City and the First-instance Marriage and Family Judgment No. 34/2017/HNGĐ-ST dated November 30^th, 2017, of the People’s Court of Bình Thuận Province regarding the division of common property;

and to remand the case file to the People’s Court of Bình Thuận Province for a new first-isntance trial according to the law. The execution of the Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, of the High People’s Court in Hồ Chí Minh City regarding the common property is temporarily suspended until a cassation decision is made.

At the cassation hearing, the representative of the Supreme People’s Procuracy recommended that the Judges’ Council of the Supreme People’s Court accept the Cassation Appeal Decision No. 10/2021/KN-HNGĐ dated November 23^rd, 2021, of the Chief Justice of the Supreme People’s Court.

COURT’S OPINION:

[1] In relation to the marital relationship between Mr. E and Mrs. Nguyễn Thị Ngọc C, it is established that the couple was married on August 6^th, 2013, at the People’s Committee of Bình Định Province. Following a period of cohabitation, both parties experienced a loss of affection and subsequently reached a mutual agreement to divorce. The recognition of this mutual consent by both the first-instance court and the appellate court is found to be justified.

[2] Concerning the determination of the common property of the spouses:

[3] Regarding Plot No. 67, Map No. 335, with an area of 261.4m², located in H Hamlet, T Commune, B District, Bình Thuận Province:

[4] On September 26^th, 2014, Mrs. Trần Thị N and her daughter, Ms. Trần Thị Huyền M, transferred Plot No. 67, Map No. 335, encompassing 261.4m² of land in H Hamlet, T Commune, B District, to Mrs. Nguyễn Thị Ngọc C for a total amount of VND 130,000,000.

The transfer was documented in a contract notarized at S Notary Office. The payment receipt, dated September 26^th, 2014, indicates that the payment for the land was made by both Mr. E and Mrs. Nguyễn Thị Ngọc C. Mrs. Trần Thị N has affirmed the transfer of this plot to Mr. E and Mrs. Nguyễn Thị Ngọc C.

[5] Although the Land Use Rights Certificate is registered in the name of Mrs. Nguyễn Thị Ngọc C, the plot in question was acquired during the marriage. Mrs. Nguyễn Thị Ngọc C has not provided any evidence to substantiate that it should be classified as separate property.

Consequently, the determination by both the first-instance court and the appellate court that this plot constitutes the common property of Mr. E and Mrs. Nguyễn Thị Ngọc C is deemed appropriate, as per Clause 3, Article 27 of the 2000 Law on Marriage and Family and Section b, Article 3 of Resolution No. 02/2000/NQ-HĐTP dated December 23^rd, 2000, of the Judges’ Council of the Supreme People’s Court.

[6] Regarding Plot No. 58, Map No. 335, with an area of 291.3m² of land in H Hamlet, T Commune, B District, Bình Thuận Province:

[7] On July 9^th, 2013, Mrs. Trần Thị N and her daughter, Ms. Trần Thị Huyền M, transferred Plot No. 56, Map No. 3 (now Plot No. 58, Map No. 335), covering 291.3m² of land in H Hamlet, T Commune, B District, to Mrs. Nguyễn Thị Ngọc C for VND 100,000,000.

The contract for this transaction was notarized at S Notary Office. Subsequently, on July 22^nd, 2013, Mrs. Nguyễn Thị Ngọc C received a Land Use Rights Certificate for this plot from the People’s Committee of B District.

[8] Mr. E has claimed that the 291.3m² of land is the common property of the spouses and has requested a division of half of the plot. In contrast, Mrs. Nguyễn Thị Ngọc C has maintained that this land area is her separate property, having been purchased prior to her marriage to Mr. E, and that the funds used for the purchase were her personal assets.

[9] However, according to the confirmation provided by Mrs. Trần Thị N, she acknowledged the transfer of the aforementioned plot to Mr. E and Mrs. Nguyễn Thị Ngọc C. Mrs. Trần Thị N also noted that Mrs. Nguyễn Thị Ngọc C had mentioned Mr. E’s status as a foreigner, which precluded him from being named in the land use rights transfer contract or from purchasing land in Vietnam.

Under Article 9 of the 2003 Land Law, foreigners are indeed restricted from receiving land use rights transfers in Vietnam. As a result, the land use rights transfer contract only listed Mrs. Nguyễn Thị Ngọc C as the transferee. Consequently, on July 22, 2013, the People’s Committee of B District issued the Land Use Rights Certificate in the name of Mrs. Nguyễn Thị Ngọc C, which aligns with the statements made by Mr. E and Mrs. Trần Thị N.

[10] Although the Land Use Rights Transfer Contract dated July 9, 2013, was executed prior to the official registration of Mr. E and Mrs. Nguyễn Thị Ngọc C’s marriage on August 6, 2013, it is noted that Mr. E and Mrs. Nguyễn Thị Ngọc C had already submitted their marriage registration declaration on April 16, 2013, and had conducted their wedding ceremony in July 2013.

[11] Therefore, there is sufficient basis to classify Plot No. 58, Map No. 335, with an area of 291.3m², as common property of Mr. E and Mrs. Nguyễn Thị Ngọc C. The first-instance court’s determination that this plot constitutes the common property of Mr. E and Mrs. Nguyễn Thị Ngọc C is thus affirmed as correct. The appellate court’s finding that this plot is the separate property of Mrs. Nguyễn Thị Ngọc C is deemed incorrect.

[12] Regarding Plot No. 57, Map No. 3, with an area of 589.8m², and Plot No. 57, Map No. 335, with an area of 590.7m² of land in H Hamlet, T Commune, B District:

[13] On October 5^th, 2013, Mr. Trần Minh P, Mrs. Nguyễn Thị P1, and their eight children transferred a total of 1,288m² of land, Map No. 335, to Mrs. Nguyễn Thị Ngọc C at a rate of VND 500,000 per square meter. Of this total, 589.8m² had already been issued a Land Use Rights Certificate. Although the initial contract was handwritten and not notarized or authenticated, it was signed by both Mrs. Nguyễn Thị Ngọc C and Mr. E.

When the land use rights transfer contract was later notarized on October 8^th, 2013, and April 8^th, 2014, the land was divided into two sections: 589.8m² was assigned to Mrs. Nguyễn Thị Ngọc C and Mrs. Nguyễn Thị Ngọc B, and 590.7m² was assigned to Mr. Nguyễn Kim D, with Mrs. Nguyễn Thị Ngọc B and Mr. Nguyễn Kim D being siblings of Mrs. Nguyễn Thị Ngọc C.

[14] According to these contracts, Mrs. Nguyễn Thị Ngọc C and Mrs. Nguyễn Thị Ngọc B each received separate Land Use Rights Certificates for Plot No. 57, Map Sheet No. 3, with an area of 589.8m², on November 15^th, 2013. Mr. Nguyễn Kim D was issued a Land Use Rights Certificate on May 8^th, 2014, for Plot No. 57, Map Sheet No. 335, with an area of 590.7m².

[15] Mr. E has asserted that these plots are common property and has requested a division of one-half share. However, Mrs. Nguyễn Thị Ngọc C, Mrs. Nguyễn Thị Ngọc B, and Mr. Nguyễn Kim D have contested this claim, maintaining that these plots are their separate properties.

[16] However, Mr. Trần Minh P and Mrs. Nguyễn Thị P1, the land transferors, have confirmed that they only transferred the land to Mr. E and Mrs. Nguyễn Thị Ngọc C, and not to Mrs. Nguyễn Thị Ngọc B or Mr. Nguyễn Kim D. They also noted that Mrs. Nguyễn Thị Ngọc C had mentioned Mr. E’s foreign status, which precluded him from purchasing land in Vietnam, in line with the 2003 Land Law that prohibited foreigners from acquiring land use rights in the country.

Thus, the statements provided by Mr. Trần Minh P, Mrs. Nguyễn Thị P1, and Mr. E are supported by the evidence.

[17] In practice, Mrs. Nguyễn Thị Ngọc B and Mr. Nguyễn Kim D did not manage or utilize the aforementioned plots of land. These plots were managed and used by Mr. E and Mrs. Nguyễn Thị Ngọc C, who also constructed a house on Plot No. 57, Map Sheet No. 3. The builder, Mr. Phan Hồng K, confirmed that the construction costs were covered by Mr. E and Mrs. Nguyễn Thị Ngọc C.

[18] Accordingly, there is a basis to determine that the house and land on Plot No. 57, Map Sheet No. 3, with an area of 589.8m², and Plot No. 57, Map Sheet No. 335, with an area of 590.7m², are common property of Mr. E and Mrs. Nguyễn Thị Ngọc C, rather than the property of Mrs. Nguyễn Thị Ngọc B and Mr. Nguyễn Kim D.

[19] The appellate court’s decision, which allocated only half of Plot No. 57, Map Sheet No. 3 (589.8m²/2) as common property of Mr. E and Mrs. Nguyễn Thị Ngọc C, while assigning the remaining half of Plot No. 57, Map Sheet No. 3 (589.8m²/2) to Mrs. Nguyễn Thị Ngọc B and Plot No. 57, Map Sheet No. 335, with an area of 590.7m², to Mr. Nguyễn Kim D, is unsupported by the facts.

[20] The first-instance court correctly concluded that the plots in question are common property of Mr. E and Mrs. Nguyễn Thị Ngọc C. However, the Land Use Rights Certificates dated November 15^th, 2013, indicate that Plot No. 57, Map Sheet No. 3, with an area of 589.8m², is registered in the name of Mrs. Nguyễn Thị Ngọc B, and Plot No. 57, Map Sheet No. 335, with an area of 590.7m², is registered in the name of Mr. Nguyễn Kim D.

The first-instance court did not address the legality of these Land Use Rights Certificates and, as such, did not fully resolve the case.

[21] Regarding the division of common property, the appellate court’s decision to allocate 70% of the contribution to Mrs. Nguyễn Thị Ngọc C and 30% to Mr. E in relation to the creation of the property, specifically the plots of land, fails to adequately safeguard Mr. E’s rights and does not align with the principles outlined in Article 59 of the 2014 Law on Marriage and Family.

The first-instance court’s decision, which recognized the equal contributions of Mr. E and Mrs. Nguyễn Thị Ngọc C to the land use rights and thus divided the value of these rights equally, is deemed justified.

Concerning the value of the house, although the appellate court acknowledged that the house built on Plot No. 57, Map Sheet No. 3, is common property of Mr. E and Mrs. Nguyễn Thị Ngọc C, it concluded that since Mr. E lived elsewhere during the construction and Mrs. Nguyễn Thị Ngọc C completed the house alone, Mr. E should receive 20% of the house’s value. This allocation is considered appropriate.

[22] With respect to the valuation of the land use rights and the property on the land, during the proceedings, the first-instance court relied on an appraisal certificate dated June 7^th, 2017, from M Valuation and Information Joint Stock Company. This appraisal determined the value of the land use rights (including plots 58, 67, 57) to be VND 1,871,856,000 and the value of the construction works and property on the land to be VND 1,232,570,000.

Mr. E contested this valuation, arguing that it was incorrect and requested a revaluation by the appellate court. The appellate court tasked the People’s Court of Bình Thuận Province with conducting a revaluation of the disputed land and house. However, due to alleged non-cooperation from Mrs. Nguyễn Thị Ngọc C, the revaluation could not be completed.

Consequently, Mr. E’s authorized representative, Mrs. Lê Nguyễn Vi V, engaged M Valuation and Information Joint Stock Company to perform a new appraisal, which valued the land use rights at VND 3,825,172,400 and the construction works and property on the land at VND 1,232,555,089, as per the appraisal certificate dated October 25^th, 2018.

Despite this new appraisal, the appellate court deemed the revaluation unnecessary and chose to rely on the initial valuation by the first-instance court, thereby not fully safeguarding Mr. E’s legal rights and interests.

In light of the foregoing,

IT IS DECIDED:

Pursuant to point a clause 2 Article 337, clause 1 Article 342, clause 3 Article 343, clauses 1 and 2 Article 345 of the Civil Procedure Code 2015;

1. The Cassation Appeal Decision No. 10/2021/KN-HNGĐ dated November 23^rd, 2021, issued by the Chief Justice of the Supreme People’s Court, is accepted. This decision pertains to the Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, of the High People’s Court in Hồ Chí Minh City concerning the determinationand division of common property.
2. The Appellate Marriage and Family Judgment No. 04/2019/HNGĐ-PT dated March 5^th, 2019, of the High People’s Court in Hồ Chí Minh City, as well as the First-instance Marriage and Family Judgment No. 34/2017/HNGĐ-ST dated November 30^th, 2017, of the People’s Court of Bình Thuận Province, are both vacatedin relation to the determinationand division of common property.
3. The case file is remanded to the People’s Court of Bình Thuận Province for anewfirst-instance trial, concerning the determination and division of common property, in accordance with the law.

CONTENT OF THE CASE LAW:

“[8] Mr. E has claimed that the 291.3m² of land is the common property of the spouses and has requested a division of half of the plot. In contrast, Mrs. Nguyễn Thị Ngọc C has maintained that this land area is her separate property, having been purchased prior to her marriage to Mr. E, and that the funds used for the purchase were her personal assets.

[9] However, according to the confirmation provided by Mrs. Trần Thị N, she acknowledged the transfer of the aforementioned plot to Mr. E and Mrs. Nguyễn Thị Ngọc C. Mrs. Trần Thị N also noted that Mrs. Nguyễn Thị Ngọc C had mentioned Mr. E’s status as a foreigner, which precluded him from being named in the land use rights transfer contract or from purchasing land in Vietnam.

Under Article 9 of the 2003 Land Law, foreigners are indeed restricted from receiving land use rights transfers in Vietnam. As a result, the land use rights transfer contract only listed Mrs. Nguyễn Thị Ngọc C as the transferee. Consequently, on July 22, 2013, the People’s Committee of B District issued the Land Use Rights Certificate in the name of Mrs. Nguyễn Thị Ngọc C, which aligns with the statements made by Mr. E and Mrs. Trần Thị N.

[10] Although the Land Use Rights Transfer Contract dated July 9, 2013, was executed prior to the official registration of Mr. E and Mrs. Nguyễn Thị Ngọc C’s marriage on August 6, 2013, it is noted that Mr. E and Mrs. Nguyễn Thị Ngọc C had already submitted their marriage registration declaration on April 16, 2013, and had conducted their wedding ceremony in July 2013.

[11] Therefore, there is sufficient basis to classify Plot No. 58, Map No. 335, with an area of 291.3m², as common property of Mr. E and Mrs. Nguyễn Thị Ngọc C. The first-instance court’s determination that this plot constitutes the common property of Mr. E and Mrs. Nguyễn Thị Ngọc C is thus affirmed as correct. The appellate court’s finding that this plot is the separate property of Mrs. Nguyễn Thị Ngọc C is deemed incorrect.”

THE RATIONALE FOR THE CASE LAW DRAFT’S PROPOSAL

According to the provisions of the Law on Marriage and Family 2014:

– Clause 13, Article 3 defines the marriage period as:

“13. The marriage period is the period during which the marital relationship exists, calculated from the date of marriage registration to the date of termination of the marriage.”

– Clause 1, Article 33 stipulates:

“1. Common property of husband and wife includes property created by either spouse, income generated from labor, production, business activities, yields, profits derived from separate property, and other lawful income during the marriage period, except as stipulated in Clause 1, Article 40 of this Law; property inherited jointly or given jointly to both spouses, and other property agreed upon by the spouses as common property.”

– Article 43 addresses separate property of husband and wife:

“1. Separate property of husband and wife includes property owned by either spouse before marriage; property inherited separately or given separately during the marriage period; property divided separately to the husband or wife under Articles 38, 39, and 40 of this Law; property serving essential needs of the husband or wife and other property under the law that belongs to the separate ownership of either spouse.”

In practice, the determination of common and separate property in marriage and family cases must be carefully considered and evaluated to suit the specifics of each case.

In this case, proposed for the development of case law, the issue to be resolved is whether Plot No. 58 is common property of Mr. E and Mrs. Nguyễn Thị Ngọc C or separate property of Mrs. Nguyễn Thị Ngọc C. The first-instance, appellate, and cassation courts have presented differing arguments regarding this determination.

Mr. E and Mrs. Nguyễn Thị Ngọc C registered their marriage on August 6^th, 2013. However, the Land Use Rights Transfer Contract, signed by Mrs. Nguyễn Thị Ngọc C on July 9^th, 2013, predates their marriage registration according to the law. The legal definition of the marriage period includes only the time from marriage registration to its termination.

Nevertheless, Mr. E and Mrs. Nguyễn Thị Ngọc C had been cohabiting prior to their formal marriage registration, had made a marriage registration declaration on April 16^th, 2013, and held their wedding ceremony in July 2013. The land use right transferor confirmed that the land was transferred to Mr. E and Mrs. Nguyễn Thị Ngọc C as a married couple.

Therefore, the Judges’ Council’s determination to consider the marriage period as beginning from April 16^th, 2013, and the subsequent wedding ceremony in July 2013, and to regard the transfer of land use rights to Mr. E and Mrs. Nguyễn Thị Ngọc C as reflecting their common property, is well-founded.

To guide uniform application of the law in resolving similar legal situations, this cassation decision should be developed into a precedent.

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