CASE LAW NO. 03/2016/AL

Cassation Decision No. 208/2013/DS-GĐT dated May 3^rd, 2013 of Civil Court, Supreme People’s Court regarding “Divorce” case in Hà Nội

Approved by the Judicial Council of the Supreme People’s Court on April 6^th, 2016, and published under Decision No. 220/QĐ-CA on April 6^th, 2016, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

Cassition Decision No. 208/2013/DS-GĐT dated May 3^rd, 2013, of the Civil Court of the Supreme People’s Court regarding the “Divorce” case in Hà Nội between the plaintiff, Ms. Đỗ Thị Hồng, and the defendant, Mr. Phạm Gia Nam; with related parties including Mr. Phạm Gia Phác, Ms. Phùng Thị Tài, Mr. Phạm Gia Ơn, Ms. Phạm Thị Lữ, Mr. Bùi Văn Đáp, and Ms. Đỗ Thị Ngọc Hà.

Summary of the Case Law:

In a situation where parents have gifted a plot of land to their child and the child’s spouse, and the couple has constructed a permanent house on this land to reside in, without any objection from the parents or other family members at the time of construction; the couple has continuously, openly, and stably used the house and land, and have registered the land and been issued a land use certificate, it must be recognized that the couple has been gifted the land use rights.

Relevant Legal Provisions:

– Article 14 of the 1986 Marriage and Family Law;

– Article 242 of the 1995 Civil Code;

– Clause 2, Article 176 of the 1995 Civil Code.

Keywords:

“Divorce”; “Marital property”; “Gift of property”; “Basis for establishing ownership”; “Establishment of ownership by agreement”.

CASE DETAILS

Ms. Đỗ Thị Hồng and Mr. Phạm Gia Nam were married in 1992, registered at the People’s Committee of Vân Tảo Commune, Thường Tín District, Hà Nội City. After a period of cohabitation, conflicts arose, and the couple has been separated since September 2008. On April 18^th, 2009, Ms. Hồng filed for divorce from Mr. Nam, and Mr. Nam agreed.

Regarding the Children:

The couple has two children: Phạm Gia Khang, born in 1992, and Phạm Hương Giang, born in 2000. Both Ms. Hồng and Mr. Nam wish to have custody of both children without requesting the other party to contribute to their upbringing. Khang wishes to live with Mr. Nam, and Giang wishes to live with Ms. Hồng.

Regarding Property:

During their marriage, the couple built a two-story house in 2002 (with an additional attic for heat insulation in 2005) on an 80 square meter plot in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín District. The couple agrees that the house is joint marital property. However, they cannot agree on the land.

Ms. Hồng claims that the land was granted to Mr. Phạm Gia Phác (Mr. Nam’s father) in 1992. The Phác family later met and declared that the land was given to the couple without any formal documentation. In 2001, Mr. Phác informed them, and Mr. Nam proceeded with the paperwork to obtain a land use certificate in Mr. Nam’s name. Thus, the land is joint marital property.

She requests to use the house and land and to pay Mr. Nam half the value of the land and assets on it as appraised by the Valuation Council.

Mr. Nam argues that his parents received the land in 1992 and allowed the couple to stay temporarily, without transferring ownership, as his family is large. In 2001, he registered the land himself without his family’s knowledge. He proposes returning the land to Mr. Phác.

Mr. Phác and Ms. Tài (Mr. Nam’s parents) assert that they received the land in 1992 from the People’s Committee of Vân Tảo Commune and built a one-story house on it. In 1993, they allowed Mr. Nam and Ms. Hồng to live there but did not give them the land because Ms. Tài has been paralyzed for 15 years and Mr. Phác and Mr. Ơn (Mr. Nam’s brother) take care of her.

The family intends for the land to go to Mr. Ơn, who lacks housing. When they received the land due to population distribution, the family only consisted of Mr. Phác, Ms. Tài, Ms. Lữ, and Mr. Ơn (Mr. Nam had already moved away). They only learned that Mr. Nam had transferred the land title to himself in 2001 when Ms. Hồng filed for divorce. Now, they request the land to be returned.

Additionally, during the case, Ms. Hồng mentioned that Mr. Nam received a 125 square meter plot in Thạch Thất District from the Military Officer School I. Initially, she requested this land be divided but later withdrew this request.

Regarding Debts:

Ms. Hồng claims the couple borrowed 7.5 chỉ (approx. 2.8 ounces) of 9999 gold from her mother, Ms. Hoàng Thị Chu; 1 cây (approx. 1.2 ounces) of 9999 gold from her sister, Ms. Đỗ Thị Ngọc Hà; and 150,000,000 VND from Mr. Bùi Văn Đáp at an interest rate of 1.25% per month, without any written agreements. She requests that Mr. Nam jointly repay these debts.

Mr. Nam acknowledges only the debt to Ms. Chu of 7.5 chỉ of gold, of which he has repaid 13,875,000 VND (equivalent to 3.75 chỉ of gold). He denies knowledge of the other debts and refuses to pay them as requested by Ms. Hồng.

On November 3^rd, 2010, the Valuation Council appraised the assets as follows:

– Land: 80m² x 22,000,000 VND/m² = 1,760,000,000 VND.

– House: 475,865,000 VND.

Total asset value: 2,235,865,000 VND.

First Instance Judgment No. 03/2011/HNGĐ-ST dated May 17^th, 2011, of the People’s Court of Thường Tín District, Hà Nội City:

1. Regarding the marital relationship: Ms. Đỗ Thị Hồng is granted a divorce from Mr. Phạm Gia Nam.
2. Regarding the children: Custody of Phạm Hương Giang, born August 14, 2000, is granted to Ms. Hồng until she reaches adulthood. Mr. Nam is temporarily exempt from child support until Ms. Hồng requests it. Mr. Nam has visitation rights, which cannot be obstructed.
3. Regarding joint property and contributions: The two-story house and all constructions on the 80m² plot at No. 63, Map Sheet No. 5, in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín District, Hà NộiCity, are confirmed as joint property of Ms. Đỗ Thị Hồng and Mr. Phạm Gia Nam, valued at 475,865,000 VND.
4. Regarding land use rights: The 80m² plot at No. 63, Map Sheet No. 5, in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín District, Hà NộiCity, belongs to Mr. Phạm Gia Phác’s household. Ms. Đỗ Thị Hồng and Mr. Phạm Gia Nam must return the land use rights to Mr. Phác’s household. Mr. Phác’s household is granted ownership of all assets on the plot, including the two-story house. Mr. Phác must compensate Ms. Đỗ Thị Hồng and Mr. Phạm Gia Nam each 237,932,500 VND.
5. Recommendation: The People’s Committee of Thường Tín District is recommended to revoke the land use certificate No. U060645 issued on December 21^st, 2001, in the name of Mr. Phạm Gia Nam’s household and reissue it to Mr. Phạm Gia Phác upon his request.
6. Acknowledged Mr. Phạm Gia Nam’s voluntary support of Ms. Đỗ Thị Hồng with the amount of 800,000,000 VND.
7. Required Ms. Đỗ Thị Hồng to pay Mr. Bùi Văn Đáp the amount of 179,820,000 VND.
8. Dismissed other requests from Ms. Đỗ Thị Hồng.

In addition, the first-instance court also ruled on court fees and the right to appeal.

On May 19^th, 2011, Ms. Hồng filed an appeal against the entire first-instance judgment.

On May 24^th, 2011, Mr. Nam appealed, disagreeing with supporting Ms. Hồng 800,000,000 VND for creating new housing. However, at the appellate court session, Mr. Nam withdrew this appeal.

In Appellate Judgment No. 105/2011/LHPT dated August 30^th, 2011, and September 6^th, 2011, the Hà Nội People’s Court ruled:

To uphold the first-instance judgment on marriage and family case No. 03/2011/HNGĐ-ST dated May 17^th, 2011, of the Thường Tín District People’s Court, Hà Nội (as mentioned above).

Additionally, the appellate court also ruled on court fees.

After the appellate trial, Ms. Hồng and Ms. Hoàng Thị Chu filed a request for a cassation review of the above appellate judgment.

In Cassation Decision No. 05/2013/KN-HNGĐ-LĐ dated January 3^rd, 2013, the Chief Justice of the Supreme People’s Court appealed the Appellate Judgment on Marriage and Family Case No. 105/2011/LHPT dated August 30^th, 2011, and September 6^th, 2011, of the Hà Nội People’s Court. It was proposed that the Civil Court of the Supreme People’s Court conduct a cassation trial to annul the above appellate judgment and the first-instance judgment on marriage and family case No. 03/2011/HNGĐ-ST dated May 17^th, 2011, of the Thường Tín District People’s Court, Hà Nội, regarding the property relationship; and to remit the case file to the Thường Tín District People’s Court, Hà Nội for re-trial according to legal provisions.

At the cassation trial, the representative of the Supreme People’s Procuracy argued that regarding the disputed land, when land was allocated to Mr. Phác’s family due to population distribution, Mr. Nam was not present, and there was no basis to believe that the parents had given the land to Mr. Nam and his wife, so the land still belonged to Mr. Phác’s family. The courts at both levels determined that the land belonged to Mr. Nam’s parents, which was justified. However, there was an error regarding Ms. Chu’s debt. Therefore, it was proposed that the Cassation Trial Panel not accept the Chief Justice of the Supreme People’s Court’s appeal.

The Cassation Trial Panel of the Civil Court of the Supreme People’s Court determined:

Regarding the marital relationship and common children, the courts at all levels had resolved these issues, and the litigants had no complaints.

Regarding the property relationship: The property in dispute was an 80m² plot of land in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín District, Hà Nội, registered in the name of Mr. Phạm Gia Nam’s household.

The case file showed that the origin of the above-mentioned land was from Mr. Phạm Gia Phác, who was allocated land under the population distribution policy by the People’s Committee of Vân Tảo Commune, Thường Tín District in 1992. According to the land transfer record by the Commune’s People’s Committee to Mr. Phác, at the time of this land transfer, Ms. Hồng was already married to Mr. Nam.

However, according to the verification by the first-instance court in Vân Tảo Commune, Thường Tín District regarding the land allocation procedure, the commune had a policy to allocate land under the population distribution from 1991. Although when the land was allocated, Mr. Phác’s family had only four members (Mr. Phác, Mrs. Tài, Ms. Lữ, and Mr. Ơn) because Mr. Nam was in the military and had not returned to the locality, the population distribution land was allocated to households with many members, including Mr. Phác and his children, so Mr. Nam was also an eligible land recipient.

After receiving the land, Mr. Phác’s family built a one-story house. In 1993, Mr. Phác’s family allowed Mr. Nam and Ms. Hồng to live separately on this plot, and they managed and used the land continuously from then until now.

Ms. Hồng claimed that Mr. Phác’s family had declared the land as a gift to her and Mr. Nam, but Mr. Phác and Mr. Nam asserted that the family had not given the land to them.

It was found that according to the verification by the People’s Committee of Vân Tảo Commune, in 2001, the commune organized for households in Vân Tảo to register and declare for the issuance of land use rights certificates, with the households registering at the hamlet office (Document BL 103). All residents in the commune were aware of this land registration policy. Mr. Phác, as the landowner, did not register.

Mr. Nam, residing on the land, registered and completed the procedures for the land use rights certificate. On December 21, 2001, Mr. Nam was issued Land Use Rights Certificate No. U060645 in the name of Mr. Phạm Gia Nam’s household. He and his wife built a solid two-story house in 2002 and added an attic on the third floor in 2005. Mr. Phác and Mr. Nam’s siblings were aware of the construction but did not object.

Thus, from the issuance of the land use rights certificate (2001) until the divorce (2009), Mr. Phác’s family did not object to the land allocation or construction. This indicated that Mr. Phác’s family intended to give the land to Mr. Nam and Ms. Hồng. Therefore, the claim that Mr. Nam unilaterally registered the land without Mr. Phác’s knowledge was unfounded. Thus, Ms. Hồng’s statement that Mr. Phác’s family gave them the land was valid.

Therefore, the courts’ conclusion that Mr. Nam registered the land without Mr. Phác’s knowledge and that Ms. Hồng’s claim lacked evidence to prove that Mr. Phác’s family gave the land to her and Mr. Nam, and the determination that the 80m² plot in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín District, Hà Nội, belonged to Mr. Phác’s household, and ordering Mr. Nam and Ms. Hồng to return the land to Mr. Phác’s family, was incorrect.

The disputed land should be considered as joint property of Mr. Nam and Ms. Hồng, and when dividing it, Mr. Nam’s greater contribution should be acknowledged to divide the property according to each party’s contributions and based on their housing needs to ensure the rights of the litigants.

Regarding the complaint from Ms. Hoàng Thị Chu (Ms. Hồng’s mother), it was noted: On May 7^th, 2011 (before the first-instance trial), Ms. Chu had submitted a letter to the Thường Tín District People’s Court, stating: “Today, May 7^th, 2011, I have received the amount owed to me. I no longer request the court to resolve this matter.” The first-instance court ruled to confiscate Ms. Chu’s advance court fee (200,000 VND) into the state budget but did not rule to dismiss her debt claim, which was against the provisions of point đ, clause 1, Article 192 of the Civil Procedure Code.

However, after the first-instance trial, Ms. Chu did not appeal, and the Procuracy did not lodge a protest; therefore, the appellate court, based on Article 263 of the Civil Procedure Code, only reviewed the parts of the first-instance judgment that were appealed or protested against or were related to the content of the appeal or protest, making the Chief Justice of the Supreme People’s Court’s protest on this matter unnecessary.

Therefore, the Cassation Trial Panel of the Civil Court of the Supreme People’s Court considered that the Chief Justice’s protest regarding the disputed property of Mr. Nam and Ms. Hồng (the 80m2 land in Vân Hòa hamlet, Vân Tảo commune, Thường Tín district, Hà Nội) was justified.

In light of the foregoing, pursuant to clause 2, Article 291; clause 3, Article 297; and Article 299 of the Civil Procedure Code;

DECISION

To vacate Appellate Judgment on Marriage and Family No. 105/2011/LH-PT dated August 30^th, 2011, and September 6^th, 2011, of the Hà Nội People’s Court, and the First-instance Judgment on Marriage and Family No. 03/2011/HNGĐST dated May 17^th, 2011, of the Thường Tín District People’s Court, Hà Nội, regarding the property relations in the case of “Divorce” between the plaintiff Ms. Đỗ Thị Hồng and the defendant Mr. Phạm Gia Nam;

To remand the case file to the Thường Tín District People’s Court, Hà Nội, for re-trial according to legal provisions.

CONTENT OF THE CASE LAW

“According to verification at the People’s Committee of Vân Tảo Commune, in 2001, the commune organized for households in Vân Tảo to register and declare for the issuance of land use rights certificates, with the households registering at the Hamlet office (Document BL 103). All residents in the commune were aware of this land registration policy. Mr. Phác, as the landowner, did not register.

Mr. Nam, residing on the land, registered and completed the procedures for the land use rights certificate. On December 21^st, 2001, Mr. Nam was issued Land Use Rights Certificate No. U060645 in the name of Mr. Phạm Gia Nam’s household. He and his wife built a solid two-story house in 2002 and added an attic on the third floor in 2005. Mr. Phác and Mr. Nam’s siblings were aware of the construction but did not object.

Thus, from the issuance of the land use rights certificate (2001) until the divorce (2009), Mr. Phác’s family did not object to the land allocation or construction. This indicated that Mr. Phác’s family intended to give the land to Mr. Nam and Ms. Hồng. Therefore, the claim that Mr. Nam unilaterally registered the land without Mr. Phác’s knowledge was unfounded. Thus, Ms. Hồng’s statement that Mr. Phác’s family gave them the land was valid.

Therefore, the courts’ conclusion that Mr. Nam registered the land without Mr. Phác’s knowledge and that Ms. Hồng’s claim lacked evidence to prove that Mr. Phác’s family gave the land to her and Mr. Nam, and the determination that the 80m² plot in Vân Hòa Hamlet, Vân Tảo Commune, Thường Tín district, Hà Nội, belonged to Mr. Phác’s household, and ordering Mr. Nam and Ms. Hồng to return the land to Mr. Phác’s family, was incorrect.

The disputed land should be considered as joint property of Mr. Nam and Ms. Hồng, and when dividing it, Mr. Nam’s greater contribution should be acknowledged to divide the property according to each party’s contributions and based on their housing needs to ensure the rights of the litigants.”

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