The red book is only in the husband's name, when divorcing, can the wife divide assets

Lawyer Diep Nang Binh - Head of Tinh Thong Law Office, Ho Chi Minh City Bar Association answers: The fact that the red book is only in the husband's name in reality often makes many people misunderstand that this is the husband's private property.

However, according to the Law on Marriage and Family 2014, this understanding is incomplete, because the law does not base on who is named on the land use right certificate, but based on the origin of asset formation.

Article 33 of the law clearly stipulates: Common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, profits, profits arising from private property and other legal income during the marriage period, except for cases specified in Clause 1, Article 40 of this Law; property that husband and wife are jointly inherited or jointly gifted and other property that husband and wife agree is common property.

The land use rights that husband and wife have after marriage are common property of husband and wife, except in cases where husband and wife are separately inherited, separately gifted or obtained through transactions with separate property.

This regulation clearly states the principle: all assets formed during the marriage period, including land use rights, are in principle common property, unless there is evidence to prove that they are private property.

Article 43 of the Law on Marriage and Family 2014 stipulates: Private property of husband and wife includes property that each person had before marriage; property inherited separately, given separately during the marriage period; property divided separately for husband and wife according to the provisions of articles 38, 39 and 40 of this Law; property serving essential needs of husband and wife and other property that, according to the provisions of law, belongs to the private ownership of husband and wife.

Thus, to determine that an asset is private, there must be a clear basis belonging to the cases prescribed by law, and the obligation to prove it belongs to the person who claims that it is private property.

Article 59 of this law also stipulates the principle of resolving property of husband and wife upon divorce: Common property of husband and wife is divided in half but taking into account factors such as the family and husband and wife's circumstances; the contributions of husband and wife to the creation, maintenance and development of common property; protecting the legitimate interests of each party in production, business and occupation so that the parties have conditions to continue working to generate income; the fault of each party in violating the rights and obligations of husband and wife.

This regulation shows that the division of assets is not only divided equally in terms of quantity but also a division that considers the actual contributions and specific circumstances of each party.

From the above legal bases, it can be analyzed as follows: If the land use right is formed during the marriage period by the common income and effort of both husband and wife, then in essence it is common property.

The fact that the "red book is only in the husband's name" in this case is only for administrative management purposes, does not change the nature of ownership. Therefore, when divorcing, the wife has the full right to request the court to determine that this is common property for division according to regulations.

Conversely, if the husband proves that the land use right belongs to one of the cases of separate property according to Article 43 (for example, having been before marriage, being given separately, separately inherited or formed from separate property), then this property will not be included in the common property for division.

In summary, the name on the red book is not a decisive factor in property rights in marital relations. The legally valid factor is the origin of asset formation and the ability to prove whether it is common property or private property according to the provisions of law.

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