Determining the common and separate property of spouses during marriage holds significant importance in examining the legal nature of contracts, transactions, and other related issues of the spouses. It serves as a foundation for the spouses to exercise their rights and obligations and ensures the livelihood needs of the couple and family members. According to the law, spouses may choose a property regime based on statutory law or by agreement. This means that in the absence of an agreement on the property regime, the statutory law automatically applies. The 2014 Law on Marriage and Family (LMF) stipulates the separate and common property of spouses as follows:

I. Separate Property of Spouses

Article 43 of the LMF stipulates:

1. Separate property of spouses includes property that each person owns before marriage; property individually inherited or gifted during the marriage; property separately divided to the spouses as prescribed in Articles 38, 39, and 40 of this Law; property serving the essential needs of the spouses and other property that, according to legal provisions, belongs to the individual ownership of the spouses.
2. Property formed from the separate property of spouses is also the separate property of the spouses. Fruits and revenues arising from separate property during the marriage are to be handled as prescribed in Clause 1 of Article 33 and Clause 1 of Article 40 of this Law.

Thus, according to legal provisions, the following assets are considered the separate property of either spouse:

Property formed before the marriage period: This means that before marriage, if Mr. A or Ms. B acquired assets such as houses, vehicles, money, gold, etc., regardless of how they were formed, they are naturally the separate property of Mr. A or Ms. B. However, if after marriage, they agree to merge this property into the common property of the couple, then it becomes common property.

Property individually inherited or gifted during the marriage is considered the separate property of each person. This is understood to mean that assets formed during the marriage but individually gifted or inherited are also considered the separate property of each person. For example, if Mr. A married Ms. B on March 20, 2021, and in April 2022, Mr. A was individually gifted a house by his mother, then this house is the separate property of Mr. A, even though it was formed during the marriage.

Property formed from the separate property of spouses is also the separate property of the spouses. This means that although the property was formed during the marriage, it was purchased with separate property, so it remains separate property. For example, if Ms. B married Mr. A on November 30, 2000, and on February 13, 2020, Ms. B inherited a house from her mother, then this house is the separate property of Ms. B, even though it was formed during the marriage. Later, if Ms. B sells this house and uses the proceeds to buy a car, then the car remains the separate property of Ms. B.

II. Common Property of Spouses

Clause 1 of Article 33 of the LMF stipulates:

1. “Common property of spouses includes property created by the spouses, income from labor, production activities, business, fruits, and revenues arising from separate property and other lawful income during the marriage, except as provided in Clause 1 of Article 40 of this Law; property that spouses inherit together or are jointly gifted, and other property that spouses agree to be common property. The right to use land acquired by the spouses after marriage is the common property of the couple, except in cases where one spouse individually inherits, is gifted, or acquires it through transactions with separate property.“Common property of spouses includes property created by the spouses, income from labor, production activities, business, fruits, and revenues arising from separate property and other lawful income during the marriage, except as provided in Clause 1 of Article 40 of this Law; property that spouses inherit together or are jointly gifted, and other property that spouses agree to be common property. The right to use land acquired by the spouses after marriage is the common property of the couple, except in cases where one spouse individually inherits, is gifted, or acquires it through transactions with separate property.“

According to Article 9 of Decree No. 126/2014/ND-CP dated December 31, 2014, by the Government detailing some articles and measures to enforce the Law on Marriage and Family, it specifies other lawful income of spouses during the marriage:

1. “Bonus money, lottery winnings, allowances, except as provided in Clause 3 of Article 11 of this Decree.
2. Property that spouses establish ownership rights over according to the provisions of the Civil Code for ownerless objects, buried or sunken objects, lost or forgotten objects, stray livestock, aquatic animals.
3. Other lawful income as prescribed by law.”

Therefore, assets not specified in Article 43 of the LMF and as analyzed in Part I, as well as assets that cannot be proven to be separate property, are naturally considered common property.

III. Principles of Asset Division upon Divorce

The separate property of the husband or wife belongs to the respective owner, except in cases where the separate property has been commingled with the marital property;

The marital property shall be divided according to the agreement of both parties. Should the parties fail to reach an agreement, they are entitled to request the court to resolve the matter. Accordingly, the marital property shall be divided equally, but factors such as the family circumstances and those of the husband and wife; the contributions of the husband and wife to the creation, maintenance, and enhancement of the marital property; the labor of the husband and wife within the household being considered as income-generating labor; the protection of the legitimate interests of each party in production, business, and professional activities to enable the parties to continue working and generating income; the fault of each party in violating the rights and obligations of the marital partnership;

The marital property shall be divided in kind, and if it cannot be divided in kind, it shall be divided according to value; the party receiving a portion of the property in kind that is of greater value than their entitled share shall compensate the other party for the difference in value.