Is red book stating the name of only one spouse the common property of husband and wife?

In practice, determining whether the land use rights certificate (also called as “red book”) stating the name of one spouse only as the holder is common or separate property still faces many problems and difficulties. To better understand this issue, PL & Partners Law Firm would like to share with you this article.

1. WHAT IS COMMON PROPERTY OF HUSBAND AND WIFE?

Pursuant to Article 33 of the Law on Marriage and Family 2014:

Common property of husband and wife includes:

Assets created by a spouse, income generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes during the marriage period, except for cases where the couple has an agreement to divide the common property in the marriage period (Article 40.1);
Assets jointly inherited by or gifted to both husband and wife and other property that they agreed to be the common property;
Land use rights obtained by a spouse after getting married, unless they are separately bequeathed, gifted to or are acquired through transactions using separate property.

Common property of spouses shall be under integrated common ownership and is used to ensure the family’s needs and fulfill the husband and wife’s common obligations.

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 common property.

In Article 9 of Decree 126/2014/ND-CP, there are more specific instructions on the above regulation. Accordingly, other lawful incomes of husband and wife during the marriage period include:

Bonuses, lottery winnings, allowances, except for allowances and incentives received by a spouse in accordance with the law on incentives for people with meritorious services to the revolution; other property rights attached to the identity of a spouse;
Property that a spouse establishes a separate ownership under the the Civil Code, for abandoned objects, buried or sunken objects, dropped or forgotten objects, lost cattle and poultry, aquatic pets;
Other lawful income as prescribed by law.

In addition, Article 10 of this Decree explains the yields and profits generated from the separate property of husband and wife as follows:

Profits arising from the private property of a spouse are natural products that he/she has from their own property;
Income arising from the separate property of a spouse is the benefit that he/she obtains from the exploitation of their own property.

2. THE IMPORTANCE OF DETERMINING COMMON PROPERTY AND SEPARATE PROPERTY?

The identification of common property makes it easier for couples to carry out civil transactions, divide common property, and handle property disputes upon divorce.

Determining whether the land use rights are common or separate property is an essential factor in the process of transfer. Clearly identifying this issue helps avoid problems relating to the signatories that affect the transaction results.

In addition, land use rights are valuable assets. When distributing inheritance or gifting land use rights, failure to clearly define the property’s legal status can cause disputes in the family. Therefore, the identification of common and separate property helps people easily bequeath, and gift their assets.

*The identification of common property makes it easier for couples to carry out civil transactions, divide common property, and handle property disputes upon divorce.*

3. SHOULD THE RED BOOK STATING THE NAME OF ONLY ONE SPOUSE AS THE HOLDER BE CONSIDERED THE COMMON PROPERTY?

Under the Law on Marriage and Family 2014, it can be seen that most of the property created during the marriage is considered common property. Unless there is a basis to determine that it is a separate property.

Pursuant to Article 98.4 of Land Law 2013, in principle, the land use rights or the land use rights, ownership of houses and other land-attached assets, or the ownership of houses and other assets attached to land, is common property. The names of both husband and wife should be written on the Certificate (also called as “red book” or ”pink book”). However, if spouses have an agreement then even if the red book/ pink book is the common property of husband and wife, the Certificate can state only one spouse’s name as the holder.

Thus, the “red book” stating the name of only one spouse as the holder can be both the common and separate property of husband and wife. In order to accurately determine, it is necessary to consider other relevant documents and factors (agreement on writing only one party’s name, deed of gift, inheritance document, transfer contract, documents proving the source of the money used to create assets, etc). If there are no grounds to prove that it’s a separate property of one party, the ” red book stating the name of only one spouse as the holder ” is determined to be common property.

We hope the sharing is useful to you when you need to carry out related civil transactions.