In the event of a divorce, property division is an important and difficult issue in the divorce proceedings.
It is not easy to define the property as marital property or separate property if either of the parties intentionally conceals property information or is not transparent or dishonest in providing property information.
In other countries over the world, even during the marriage period, both parties make an agreement on dividing marital property and separate property. In Vietnam, though the Vietnamese law allows both parties to do the same, there are a few cases where the parties make an agreement on dividing marital property during their marriage period because of influence by the local traditional lifestyle and culture.
Without an agreement on property created before and during the marriage period is one of the reasons for property dispute in the event of divorce. There are cases where either of the parties raises concern on his/her property ownership in the event of a divorce if he/she is not named on the property ownership certificates or if he/she has no proof proving that such property is mutually created by both parties. So the question is whether he/she has an obligation to successfully prove his/her ownership/use right over any marital property?
The 2014 Law on Marriage and Family provides that: if the ownership/use right over the marital property must be registered with the authority as required by law but either the husband or the wife is named on the ownership/use right certificate, the property still be treated as marital property unless otherwise proved by either party that it is his/her separate property.
As per the above regulation, in the event of divorce, the wife or the husband is not obligated to prove his/her ownership over the marital property; but instead, he/she needs to prove, by himself/herself or by the Court at his/her request, that the property in dispute is created during his/her marriage period.
In addition, there are other factors which can affect the property division in the event of divorce. Such factors are: the circumstances of the family and of each spouse; contributions by each spouse to creating the marital property; legitimate benefits of each spouse in his/her production and business; the fault of each spouse is not fulfilling his/her spousal rights and obligations during the marriage period, etc. In order for the Court to consider and accept any of the above factors when dividing marital property, the requesting party must present the persuasive evidence.
In sum, if there is a property dispute during divorce proceedings, either the husband or the wife only needs to prove that the disputed property is the marital property in accordance with law (i.e. being created during his/her marriage period). No spouse is obligated to prove his/her ownership/use right over such property. The burden of proof falls in the party who claims that such property is his/her separate property. If he/she fails to give persuasive evidence for his/her claim, the disputed property is automatically treated as marital property.
Also, if either party requests the Court to consider and accept other factors affecting the property division, he/she is obligated to give evidence for his/her request.