Khóa luận tốt nghiệp: The property regime of husband and wife by agreement under the current Vietnamese marriage and family law - Theory, law, practice

However, by the time of promulgation of the Law on Marriage and Family in 2014, our State had recognized a new type of property regime, which is the property regime of husband and wife a

The urgency of studying the graduation thesis

To ensure a stable and happy marriage, two essential factors must be considered: emotional and material (property) Material factors play a significant role in influencing emotional stability They serve as a foundation for familial bonds and facilitate the family's socioeconomic development Recognizing this influence, the state enacts legislation to govern property relations within marriage, known as the property regime.

Previously, Vietnam's marriage and family law only recognized the statutory property regime to regulate issues related to the property of husband and wife However, by the time of promulgation of the Law on Marriage and Family in 2014, our State had recognized a new type of property regime, which is the property regime of husband and wife according to the agreement, this property regime existed parallel with property regime of the spouse under the law The new property regime allows spouses or, rather, couples before marriage to actively agree on issues related to their property to apply to adjust property relations of husband and wife during marriage

The fact that Vietnamese law recognizes the type of property regime of husband and wife under the agreement is to ensure human rights and citizens' rights are recognized in the constitution and law Specifically, the right to freely dispose of personal property The recognition of this type of property regime also brings many important meanings to the marriage and family life of many couples; The most important thing is that in a market economy that opens up many investment opportunities, the law allows husband and wife to agree on the property regime will help them exercise their freedom to do business, invest and develop the asset In addition, the couple's agreement on the property has great significance in resolving divorce cases that require property

2 division, agencies, and individuals competent to handle these cases will not It takes a lot of effort and time to resolve disputes

The Marriage and Family Law (MFL) in Vietnam outlines the property regime between spouses, but it has faced inconsistencies and inadequacies The law's provisions have shown shortcomings in practice over the past eight years These issues, coupled with the importance of the property regime in marriage, led the author to select the topic "The Property Regime of Husband and Wife by Agreement under the Current Vietnamese Marriage and Family Law: Theory, Law, Practice" for their thesis, aiming to address these challenges and provide insights into the property regime in Vietnam.

Graduate thesis research situation

The topic of the marital property regime under the agreement has brought a lot of attention attention from many research authors from Associate Professors - PhDs to Masters, PhDs, Lawyers, and even students Articles of these authors are published on reputable information channels such as jurisprudence journals, legislative research journals, and also on websites of the Department of Justice and the website of the Vietnam Bar Federation Typical articles with research value on this topic can be mentioned as follows:

The most typical is the scientific researcher PGS.TS Nguyen Van Cu, who has done a lot of scientific research on this topic His articles have improved his knowledge and provided a lot of useful information year after year His research publications must be mentioned: Chế độ tài sản của vợ chồng theo pháp luật Hôn nhân và gia đình Việt Nam, Doctoral thesis in Law, 2005; Một số vấn đề về hôn ước và quan điểm áp dụng ở Việt Nam hiện nay, Jurisprudence Journal No 10/2012, 2012; Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hôn nhân và gia đình Việt Nam, jurisprudence

Journal No 4/2015, 2015; Chương VI: Chế độ tài sản của vợ chồng, Vietnam's marriage and family law Curriculum, 2021

Nguyen Phuong Thao (2015), Chế độ tài sản của vợ chồng theo thỏa thuận – kinh nghiệm từ pháp luật Úc và Hoa Kỳ, published in the Scientific Conference: New Points of the 2014 Law on mariage and family This research is on the provisions of the laws of the two countries of Australia and the United States on the matrimonial property regime under the agreement The main content of the article is to point out the subject matter, form and content in the provisions of the marriage and family laws of Australia and the United States The article is presented systematically and makes recommendations to improve Vietnam's legal regulations on this issue

Published in the Legislative Research Journal, "Property Regime Agreement under the Laws of Several Countries and Proposals for Vietnam" thoroughly examines the property regime provisions of France, Thailand, and Belgium Authored by PGS.TS.Nguyen Ngoc Dien and TS.Doan Thi Phuong Diep, the article provides a comprehensive analysis of legal provisions governing the property regime of married couples under an agreement in these countries Additionally, it offers valuable recommendations to enhance the legal framework of Vietnam regarding this matter.

Some of the master's thesis written on the subject's content must be listed as: Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam - by author Nguyen Thi Thuy Hong, Hanoi University of Law, in 2018;

Chế độ tài sản của vợ chồng theo thỏa thuận với việc bảo vệ quyền và lợi ích hợp pháp của người thứ ba – by author Nguyen Huong Giang, Hanoi University of Law, in 2017;

Chế độ tài sản của vợ chồng theo thỏa thuận theo Luật Hôn nhân và gia đình Việt Nam năm 2014 – author Nguyen Thi Thu Thuy, Hanoi University of Law, 2015;

Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hôn nhân và gia đình Việt Nam - author Ngo Thi Anh Van, Ho Chi Minh City University of Law, 2016

These articles provide a large amount of theoretical and practical knowledge, in addition, the authors present their own views and perspectives on the advantages, limitations, and inadequacies of legal regulations of Vietnam regarding the property regime of husband and wife as agreed

In general, since before and after the 2014 Law on Marriage and Family was promulgated, in the legal science of Vietnam there have been many research works on this topic, however, each author has a different perspective, a different scientific view of this kind of property regime In fact, there are still some conflicting views on the application of the spousal property regime In order to have a comprehensive and complete perspective, as well as evaluate the reality of current legal regulations in the present and future period, it is very necessary to have a new research work to meet this problem Therefore, the above-mentioned research works will have great significance in providing a large amount of theoretical knowledge for the writer to research and apply in order to make the best graduation thesis.

Subjects and scope of study of graduation thesis

This thesis investigates the provisions and theory of Vietnam's contemporary marriage and family law regarding the marital property regime by agreement The study also examines the real-world application of these regulations to understand their impact on married couples.

The property regime of husband and wife is no longer strange in the laws of many countries around the world and for Vietnamese law, the property regime under the agreement is recognized in the Law on Marriage and Family 2014 Therefore, the graduation thesis will mainly explore and present the research results on the property regime of husband and wife under agreement in the marriage and family law of Vietnam.

Graduate thesis research method

In order to do well in this graduation thesis, the author has used a combination of different research methods:

Analytical and synthesis method: this method is used throughout the graduation thesis, whereby the author uses the method to learn, recognize and evaluate the content

5 of current legal regulations on the property regime of husband and wife according to an agreement In addition, the author also learns, analyzes, and synthesizes the views of scientific researchers on this topic in many different scientific works to serve as evidence to prove and support the point of view of the author

Comparative method: This method is mainly used in some contents in the article, namely comparing the provisions of Vietnamese law in the development process and comparing the legal provisions of some countries with the current Vietnamese marriage and family law provisions on the agreed property regime.

Purpose of the study of graduation thesis

The graduation thesis will have the purpose of clarifying the theoretical issues surrounding the property regime of husband and wife under agreement In addition, the author will present and evaluate the content of Vietnam's legal provisions on marriage and family on this type of property regime On the basis of awareness and evaluation, the writer will present recommendations to improve and contribute to ensuring the applicability of these legal provisions.

Structure of graduation thesis

The graduation essay will have a structure of 03 chapters:

Chapter 1: General theory of the property regime of husband and wife by agreement Chapter 2: Contents of the current Vietnamese marriage and family law on the property regime of husband and wife by agreement

Chapter 3: Practical application and recommendations to improve the current Vietnamese law on marriage and family on the property regime of husband and wife by agreement

The concept of the property regime of husband and wife

Family is known as a cell of society, family development is also the basis for society to develop Accordingly, in order for the family to develop, not only family members, especially the couple, must ensure the spiritual element of always loving, loyal, respecting, and helping each other, but also must ensure both material factors as the economic base of the family If the family's economic base is solid, stable, and developed, it will help the family develop and make many contributions to society

Before coming together, a man and a woman are two separate individuals, owning separate properties, with separate rights and obligations over their property, however, when the two parties have decided to step When it comes to married life, the legal status of the two people changes and is quite complicated, especially in the relationship of property ownership between husband and wife In other words, the ownership of the property of the parties to the property acquired before and after the marriage is not clear Theoretically, it is possible to apply the provisions governing the property of husband and wife like other people who are not husband and wife, such as: the property of which party that party has the right to possess, use and dispose The legal income of each spouse is the separate property of the husband and wife… However, this theory cannot be applied to husband and wife in practice Because the marital relationship is of a community nature, after marriage, the couple eats together, live together, work together, share the same will in building the property, building a happy and stable family because common interests of the family, family members, and the prosperity of society

If there is no basis as a basis to solve arising problems related to the property ownership regime of husband and wife, it will cause serious consequences for their marriage, this can be mentioned as follows: arising conflicts and disputes over property relations in the marriage about the use of the common and separate property of the couple, moreover affecting the rights and interests of a third party when participating

The property regime of spouses, a fundamental aspect of marriage and family law, establishes the guidelines for handling property matters between spouses It serves as the foundation for resolving property-related issues within a marriage and plays a crucial role in determining the rights and responsibilities of each spouse regarding property ownership and management.

Currently, the law still does not have a specific concept of the term "property regime of husband and wife" Instead, the concept of the spousal property regime is found only in textbooks, journals, and scientific research Because there is no unified concept, there are many different concepts in practice Accordingly, in the "Legal Dictionary," it is defined: "the husband and wife's property regime is a synthesis of the law provisions on the rights and obligations of husband and wife towards common and separate property" 1 For this concept, the authors have not fully recognized other elements of the husband and wife's property regime such as provisions on agreement on property regime or grounds for establishing property, etc

PGS.TS Nguyen Van Cu said: “The property regime of husband and wife is a synthesis of legal regulations governing the (owning) property of husband and wife, including regulations of agreement on the property regime; on grounds for establishing property, rights and obligations of husband and wife with respect to common and separate property; cases and principles of division of property between husband and wife according to law” 2 This concept has covered much more content and is relatively complete than the first concept This is reflected in the fact that he believes that the husband and wife's property regime includes regulations of agreement on the property regime, this is a record of the type of property regime of the husband and wife according to the law

It can be seen that the husband and wife's property regime governs issues related to the property relationship of husband and wife, such as the determination of common or separate property; rights and obligations of husband and wife towards the common

1 Ministry of Justice – Institute of Legal Sciences (2006), Từ điển luật học, Encyclopedia Publishing, Judicial Publishing

2 Hanoi Law University (2021), Giáo trình Luật hôn nhân và gia đình Việt Nam, People's Public Security Publishing , Hanoi, page.164

The Marriage Law serves as the foundational legal framework governing property ownership and distribution within a marriage and provides a legal basis for safeguarding the rights of both spouses and third parties involved in property transactions Furthermore, it establishes the legal ground for resolving property disputes between spouses and between spouses and third parties through competent state agencies.

From these analyzes and proofs on the concept of the couple's property regime cited above, the following concepts can be drawn: The husband's property regime is a system of legal norms governing the issues related to the property relationship of husband and wife, including: grounds for establishing property of husband and wife; rights and obligations of husband and wife towards common and separate property; cases and principles of property division, agreement on property regime 3

Currently, according to Vietnam's marriage and family law, in addition to the husband and wife's property regime according to the statutory regime, the law also recognizes the property regime of the husband and wife by agreement It can be seen that this is a big change in legislative thinking in Vietnam For this new recognition, the above concept has ensured the rationality.

Concepts and characteristics of the conjugal property regime according to the

1.2.1 Concept of conjugal property regime by agreement

The marriage and family laws of many countries worldwide recognize the husband and wife's property regime as agreed upon, a unique arrangement reflecting the principles of individual property ownership, freedom of contract, and autonomy This regime exemplifies the principle that individuals hold the right to dispose of their property as they choose and enter into voluntary agreements, as enshrined in the Constitution It is particularly prevalent in bourgeois countries, where laws emphasize individual liberties and the ability to make independent decisions.

3 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.9

9 subjects in the relationship of marriage and family, especially in the relationship between spouses In the opinion of the legislators, marriage is essentially a kind of "civil contract" and differs only from other common civil contracts in the establishment and termination Therefore, in the marital relationship, the right of husband and wife to freely form an agreement on the property regime has become a principle and the first solution when regulating the matrimonial property regime

Basically, the property regime under the agreement must be chosen and agreed upon by the spouses themselves In case the spouses do not have a written agreement on the property regime as the basis for selecting the property regime under this agreement or this agreement is invalidated, the statutory property regime will be applied to adjust the property relationship of the spouse It can be seen that the property regime of the couple under the agreement has a close relationship with the agreement on the property regime The agreement on this property regime has many different names such as marriage contract, and prenuptial contract In order to find out how to understand the property regime of the spouses by agreement, it is necessary to first understand the agreement on the property regime of the spouses because these two issues are related to each other 4

Under Western law, a marriage contract (or prenuptial agreement) is a written document executed prior to marriage that establishes the property rights and obligations of the spouses during their union Such contracts allow couples to determine the distribution of assets and debts acquired during the marriage.

The above views on the agreement on the husband and wife's property regime are the basis for understanding the nature of the agreement on the husband's property regime

4 This phrase is used in Vietnamese marriage and family law

5 Nguyễn Văn Cừ (2012), “Một số vấn đề về hôn ước và quan điểm áp dụng ở Việt Nam hiện nay”, Journal of Jurisprudence, No 10/2012, page.3-page.9

6 Nguyễn Hồng Hải (1998), “Vấn đề thừa nhận chế độ tài sản ước định trong Luật hôn nhân và gia đình Việt Nam”, Jurisprudence Journal, page.10

Firstly, the agreement on the husband and wife's property regime only comes into force between those who have a legal marriage relationship (recognized by the state as a marriage relationship) and it contributes to creating favorable conditions for husband and wife to be free—more ownership in financial organization, and future planning This means that the time when the parties legally get married will be the time to determine the effect of the agreement between the two parties, even though both parties have signed it before The subject of the agreement must be a man and a woman This is defined in the traditional sense and in accordance with the laws of Vietnam and some countries that do not recognize same-sex marriage Secondly, in terms of form, the agreement between husband and wife on the property regime must be made in writing Usually, it must be certified by a competent agency, organization, or individual In addition to these, the agreement on the husband and wife's property regime must ensure stability, long-term, and sustainability in its application, however, according to the law in some countries, in the process of its application, it may be amended and supplemented to ensure it is consistent with the interests of the spouses, the interests of the family, the interests of the third party participating in transactions related to the husband and wife's property in reality

Thus, according to the agreed property regime of husband and wife, both husband and wife have the right to freely agree on issues related to their property during the marriage The agreement must be made in writing and made before marriage The purpose of the agreement on the matrimonial regime of the husband and wife during the marriage is to ensure the freedom and self-determination of property of the husband and wife, but always ensure to uphold the interests of the family and family members In addition, it also helps the judicial authority to settle disputes easily and conveniently, minimizing disputes in actual arising

From the above analysis, the following concepts can be drawn: The property regime of husband and wife by agreement can be understood as the property regime established on the basis of the agreement of the man and the woman in the form of a document before the marriage Its contents including grounds and origin for determining

11 a common and separate property of husband and wife; the husband and wife's rights and obligations with respect to such property and the conditions, procedures, and principles for the division of husband and wife's property 7

In addition to the above interpretation, the property regime can also be understood in another direction Accordingly, the property regime of husband and wife under the agreement is a synthesis of legal regulations governing issues related to the agreement of husband and wife on property relations, including: the husband and wife's agreement on the property regime, the basic contents of the agreement and the cases in which the agreement on the husband's property regime is declared invalid 8 The content of this concept is also built on the basis of the provisions of Vietnamese law According to this concept, the agreed property regime of husband and wife is understood as a synthesis of the provisions of law, but these regulations do not directly set forth the principles governing the property relationship of husband and wife Instead, these regulations create a basic legal corridor that shows the orientation of marriage and family law to the property relationship of husband and wife, creating the orientation for the spouse's agreement on the property regime In summary, when the law does not have a specific provision on the concept of the agreed-upon property regime, it can be understood in many different ways

1.2.2 Characteristics of the property regime of the spouses according to the agreement

Because it is one of the husband and wife's property regimes, the agreed-upon husband and wife's property regime will have some common features of the property regime, and besides, it also has its own outstanding characteristics presented below:

First, subjects participating in the property regime must have a legal marriage relationship as husband and wife Considering the agreed-upon property regime, even though the parties have an agreement on the property regime that ensures the conditions

7 Nguyễn Thị Thu Thủy (2015), Chế độ tài sản của vợ chồng theo thỏa thuận theo luật Hôn nhân và gia đình năm

2014, Master's Thesis in Law, Hanoi Law University, Hanoi, page.9

8 Ngô Thị Anh Vân (2016), Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hôn nhân và gia đình Việt Nam, Master's Thesis in Law, Ho Chi Minh City University of Law, Ho Chi Minh City, page.12

12 on content and form, it is not valid if the marriage of the man and the woman is illegal (not recognized by the State)

Second, the husband and wife's property regime only exists during the husband and wife's marriage Accordingly, the husband and wife's property regime, regardless of whether it is statutory or agreed upon, will only exist when the couple is still in a state of marriage When the marriage relationship ends, the property relationship between husband and wife also ends - the property regime ends

Third, stemming from the important role of the family in society, the law on the property regime of husband and wife always aims to ensure the interests of the family, including the right to and personal interests of spouses 9 Regardless of which regime the husband and wife follow, according to the law, they still have the obligation to ensure that the material and spiritual life and interests of the family are always guaranteed to be stable and best

The meaning of the conjugal property regime according to the agreement 14 1.4 Generalization of the property regime of spouses in Vietnamese law throughout

The recognition of the property regime of spouses by many countries around the world, including Vietnam, demonstrates the acknowledgment of its beneficial implications This property regime ensures that the spouses' agreed-upon property arrangements, as outlined in marriage and family laws, are legally recognized By providing clarity and protection, it promotes stability within families and facilitates equitable distribution of assets in the event of dissolution or unexpected circumstances.

Firstly, the property regime of the spouses under the agreement is the basis for ensuring the right of the individuals to self-determination of their property In the Vietnamese legal system, this right is enshrined in the Civil Code 2015, Article 17 stipulates: "1 Personal rights are not tied to property and personal rights are tied to property 2 Ownership, inheritance rights and other rights to property 3 The right to participate in civil relations and to have an obligation arising from that relationship."

Based on legal provisions, individuals possess the fundamental right to own, utilize, and manage their property autonomously This freedom extends to the absence of external constraints, provided the exercise of property rights adheres to legal frameworks and does not infringe upon the national interest, society, public welfare, or the legitimate rights of others.

Although in the Law on Marriage and the Family when noting the statutory property regime, there are also provisions for the rights and obligations of spouses in the possession, use and disposition of common and private property during the marriage period However, the further recognition of the property regime of the spouses under the agreement will ensure flexibility, initiative and ensure the right to establish and exercise the rights and obligations to the property of the spouse Couples will be free to agree on how to divide, use and take responsibility for the property in the way they want and in accordance with the circumstances, life, economy, culture of both of them It is the convenience of the property regime of the husband and wife according to the agreement

Secondly, the recognition of the property regime of spouses as agreed in national law is in line with the social practices and legal trends of many countries around the world Currently, it is quite common for Vietnamese citizens to marry foreigners, so we need to have regulations in line with international trend standards, in which the trend of recognizing the property regime of spouses as agreed in the marriage and family laws of the country is recorded in many countries around the world Therefore, Vietnam's marriage and family law recognizes that the property regime of couples under the agreement is very reasonable and shows the trend of integration, protecting the rights and interests of couples

Thirdly, the property regime of the husband and wife under the agreement ensures that it brings economic significance to the life of the family In a market economy, private ownership and freedom of business lead to an increasing sense of autonomy over an individual's assets The fact that the spouse is comfortable and actively uses the agreed assets to invest, seek business opportunities for the economic development of the individual and at the same time contribute to the general economy of the family is one

Agreements on property regimes before marriage have significant benefits for couples Defining investment and business assets upfront helps minimize risks and potential damage to the family's well-being Moreover, written agreements reduce conflicts and legal expenses associated with asset division disputes, ensuring a smoother process in the event of future disagreements.

Fourthly, the couple's property regime under the agreement is also a solution to minimize cases of marriage not on the basis of pure love but instead the couple targeting each other's property The fact that the parties can agree on the property regime is also one of the grounds for proving that the parties have a clear understanding of property- related matters during the marriage period, helping to ensure that the marriage is voluntary

Fifthly, the property regime of spouses under the agreement recognized by law also means that the measure helps to ensure the legitimate rights and interests of the third person when he or she conducts civil transactions with a spouse or both spouses The spouses had a prior agreement on matters relating to the ownership of the property in writing that ensured that all civil transactions were clear This allows the third person to make the right decisions when based on the written agreement that has been established to assess the benefits that can be achieved or the risks that will be borne before establishing and conducting civil transactions with the spouse

Sixthly, the property regime of the couple under the agreement is also meaningful to help the Court when dealing with the determination of assets and the division of assets of the spouses will become convenient and save time and money for the couple This has great significance in minimizing conflicts and disputes over the division of assets of spouses in divorce cases On the basis of an agreement that has been made in writing and confirmed by a competent entity, it is an important basis for judges to consider and make the right decision when dealing with requests related to property of husband and wife 1.4 Generalization of the property regime of spouses in Vietnamese law throughout historical periods

1.4.1 Husband and wife's property regime during the feudal period

During the feudal period in Vietnam, there were two large and relatively complete codes of law, namely the Hong Duc Code and the Gia Long Code In general, the regulations on the property regime between husband and wife during the period were the statutory property regime This property regime mainly uses local customs or imported Chinese views, upholds the role of the husband and proposes ways to protect the husband's domination in the family

Under the Le dynasty, the Hong Duc Code was born Although still heavily influenced by Confucian thought and highly patriarchal, it has made great strides with more national character In particular, the Hong Duc Code has quite detailed regulations on the property of husband and wife The Hong Duc Code stipulates that the property regime of husband and wife is the "community of the whole property" The husband and wife's common property includes the husband's own property, inherited from his family (the husband's estate), the wife's own property inherited from the her family (the wife's estate) and the property made by husband and wife during the marriage period Separate property of husband and wife is the property that each spouse has before marriage, because it is inherited from each person's family Both spouses have ownership rights to these properties These assets are jointly managed and exploited for common use However, separate property is only temporarily pooled together for the husband and wife to manage while the marriage exists When a person divorces, someone's personal property still belongs to that person and they have the right to take it, except in cases where the wife is guilty of fornication, the estate must be left to her husband (Article 401) Although the Hong Duc Code has made great improvements in the division of separate and common property in the marital relationship between husband and wife, the provisions of this Code are still bound by many distinguishing factors between male and female 14

The Gia Long Code, enacted under the Nguyen Dynasty, lacked the progressive provisions on the property rights of married couples found in the earlier Hong Duc Code Instead, it adopted outdated rules from the Qing Code, resulting in gender inequality in property relations The code failed to recognize the separate property rights of wives and children, and did not provide any legal framework for property agreements between spouses.

The regime of conjugal property as agreed in the law of some nations in the world

The property regime of spouses under the agreement is no longer an unfamiliar issue for the marriage and family laws of some countries around the world There have been many countries in the world such as France, Thailand, China, Japan, have acknowledged the property regime of the spouses under the agreement The study of the

20 Nguyễn Thị Vân Thư (2016), Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hôn nhân và gia đình Việt Nam, Graduation thesis, Ho Chi Minh City University of Law, Ho Chi Minh, page.38

26 legal provisions on the property regime of spouses as agreed upon by the laws of a number of countries in the world has great significance and role in raising awareness both theoretically and practically for this type of property regime

1.5.1 The regime of property of husband and wife by agreement in the French Civil

In the Civil Code of France, the provisions of the law relating to the issue of the property regime of spouses under the agreement are not recorded in the writing section on the marriage of spouses but are separately stipulated in The 3rd Book V on the establishment of property rights 21 According to the provisions of this law, the law provides for both agreement of the property regime (mariage contract) and property regimes that can be applied between husband and wife a) General issues of property regime agreed upon in the French Civil Law

First of all, it must be mentioned that the French Civil Law has recognized the property regime of husband and wife in parallel with the legal property regime, specifically stated in Article 1387 of the French Civil Code: “Legislation regulates conjugal relations, with respect to property, only in the absence of special agreements that the spouses may enter into as they deem proper, provided they are not contrary to good morals and to the following provisions" This provision recognizes the existence of the property regime of husband and wife by agreement indirectly It can be seen that the above provisions under French civil law have created freedom for husband and wife in choosing the right property regime for them before marriage However, legislators have also set limits to limit the freedom of agreement of couples to protect the rights of other subjects in society That limit is the agreement is not contrary to ethics or “other provisions of the law” – this is an open rule for the law to recognize more cases where the agreement must not be violated These regulations limit the freedom to agree on the

21 PGS.TS Nguyễn Ngọc Điện, TS Đoàn Thị Phương Diệp (2016), "Chế độ tài sản thỏa thuận tỏng pháp luật một số nước và đề xuất cho Việt Nam", Journal of Legislative Research, No 15 (319), August 2016

27 property regime of husband and wife for the purpose of protecting and maintaining public order in the family 22 b) The form of agreement and procedures of the agreed asset regime

A marriage contract must be written and notarized, requiring the presence and consent of all parties involved or their authorized representatives This legal document serves as a binding agreement between the spouses and establishes their rights and obligations within the marriage.

Procedural: Agreements on the property of the spouses must be made before the wedding ceremony and only arise from the date of the wedding Any agreement on property in a marriage must be written before the notary with the presence and consent of all parties or their authorized persons The spouses must submit a certificate of making an agreement on the property regime of the spouse to the civil status officer before marriage The fact that the agreement of the spouse is written in the marriage certificate (marriage certificate), otherwise, in the transaction with the third person, the property regime of the spouse is the statutory property regime 23

The special feature in French law is that the marriage certificate of husband and wife in France has the content of recognizing the type of property regime of the husband and wife, this is the basis for publicizing the status of the property regime of the couple, because in some civil transactions of the spouses with other parties it is necessary to prove the marital status of the couple but must be assigned Submitting the marriage certificate, the other party can fully grasp the type of property regime that this couple chooses without the need to voluntarily declare the information of the spouse in this regard c) Validity of the agreement on the property regime of the spouses

Basically, the marriage contract will be in force depending on the validity of the marital relationship, in other words, if there is no marital relationship, the marriage contract is also not valid This is not specifically noted but is understood indirectly through the provisions of Article 1395 of the French Penal Code: "The marriage contract

22 PGS.TS Nguyễn Ngọc Điện, TS Đoàn Thị Phương Diệp (2016), "Chế độ tài sản thỏa thuận tỏng pháp luật một số nước và đề xuất cho Việt Nam", Journal of Legislative Research, No 15 (319), August 2016

23 Article 1394 of the French Civil Code

According to Articles 1394 and 1395, a prenuptial agreement must be drafted before marriage and becomes effective only on the wedding date If either spouse fails to present the agreement to civil status officials at the time of marriage or proceedings, the spouses are deemed to have chosen the legal property regime Additionally, a prenuptial agreement is invalid if the spouses are not married, as it is a special agreement applicable only to the specific subject type of the wife and husband in a marriage and family relationship.

The French Civil Code also intends to add another case of the form of the contract which the parties must note that the marriage contract may also be annulled if the adult is in a state of guardianship or administration whose participation in the contract is absent from the presence and consent of the guardian or assistant (or others in accordance with the law show that they have the right to give consent to the agreement) 24

In order for the agreement of the spouses to take effect, the contents of the agreement must also ensure that there are no violations in the prohibited cases prescribed by the Law The spouse is free to agree but the contract of that agreement shall also be invalid if it exceeds the limits of their rights and obligations arising from the marriage; on the obligations and rights of parents and children, on management in accordance with law; about guardianship, as well as on the order of inheritance The legal consequence of agreements that contravene the above is that the agreement will be declared void 25 d) The content of the agreement on the property regime of the spouses

The essence of a marriage contract under French law is the choice of the common or separate property regime French law proactively proposes property regimes for husband and wife to choose when entering into a marriage, which makes the agreement easier, however, husband and wife can completely agree differently The classification

24 Article 1399 of the French Civil Code

SUB - CONCLUSION

Chapter 1 of the thesis provides historical context and an overview of property regimes, including separate agreement regimes It presents the author's research findings on the husband's property regime under Thai and French law, which form the basis for comparing them with Vietnamese law in subsequent chapters This knowledge serves as a foundation for the development of content in Chapters 2 and 3.

The property husband and wife according to the agreement can be said to be the highlight of the legislators on the property husband and wife regime It can be said that this is a property of the regime that is progressive and protects human rights, citizens, the right to self-determination of personal property and is suitable for the newly changed married life In a developed society, in a market economy, private ownership is desired by many individuals Having property and being able to dispose of it without having to depend on the will of others is the desire of many people and it is the same in marriage

In conclusion, Vietnam recognizes that the agreed-upon wife's property regime is a right and wise decision of the legislators in the new socio-economic period and in line with the legal trend of many countries world country

Principles of application of the property regime of spouses

Currently, Vietnam's marriage and family law has recognized the property regime under the agreement that exists in parallel with the statutory property regime Accordingly, the law recognizes that spouses have the right to choose the type of

38 property regime they desire to apply to the marital relationship Spouses are entitled to choose the statutory property regime (governed in articles 33 to 46 and from Articles 59 to 64) or the property regime as agreed upon (as governed in Articles 47, 48, 49, 50 and 59) 3738

Article 47 of the Law on Marriage and Family stipulates: " For a married couple that selects the agreed property regime, this agreement shall be made in writing before their marriage and be notarized or certified The agreed matrimonial property regime shall be established on the date of marriage registration."

Article 7 of Decree No 126/2014/ND stipulates as follows: " The statutory property regime of husband and wife is applied in case the husband and wife do not choose to apply the property regime as agreed upon or have an agreement on the property regime but this agreement is declared invalid by the Court according to the provisions of Article 50 of the Law on Marriage and Family."

When entering a marriage, couples have the option to establish a written agreement outlining their desired property regime, known as the "property regime of the spouse." This regime dictates how assets are managed and distributed within the marriage In the absence of such a written agreement, it is assumed that the couple does not opt for a specific property regime, and the default provisions outlined in the applicable laws will apply.

According to the above provisions, the statutory property regime of spouses is applied in two cases: first, when the spouse does not choose the property regime as agreed - that is, the parties do not establish a written agreement on the property regime before marriage; Secondly, when the agreement on the property regime of spouses is invalidated by the Court for satisfying one of the grounds specified in Article 50, in this case, the statutory property regime shall be applied against the will of the spouses

37 Clause 1, Article 28 of the Marriage and Family Law 2014

38 Article 2 of the Marriage and Family Law

General principles on the property regime of spouses

Article 29 of the Law on Marriage and Family 2014 provides for the general principles of the property regime of spouses as follows:

"1 Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor

2 Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs

3 When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.”

These principles are a solid legal basis for the adjustment of the behavior, rights and obligations of spouses to property during the period of marriage These principles aim to maintain, stabilize and develop the life of the family, ensuring the legitimate rights and interests of spouses, families and of others

The law recognizes the responsibility of both husband and wife to build and create a common property for the family together, no one "depends", or has the right to force only spouses to earn money to build property When equal in the obligation to create common property, spouses have equal rights in the possession, use and disposition of common property without distinction in the effort of those who do little, who do much; regardless of income labor and family labor In fact, we often come across cases where the husband is the main income earner in the family while the wife often stays at home to do housework and take care of children, jobs that do not generate income for the family However, thanks to these jobs, the family maintains stability and develops spiritually Therefore, in the family, husband and wife can divide labor together to build a home, maybe both work together to earn income or one person earns income, the other

40 person works as a family laborer without any income Regardless of the division, husband and wife will also have to be responsible for contributing efforts in maintaining stability and developing the family's life

The husband and wife's participation in labor, production and business is still to generate income to meet the needs of themselves and their families Accordingly, the law stipulates that spouses are obliged to meet the needs of eating, dressing, staying, studying, medical examination, treatment and other normal living needs indispensable for the life of each person, each family 39 This is an obligation that the law stipulates does not depend on the will of the spouse In this way, the interests of the family can exist and ensure stability

During daily interactions, spouses may engage in civil transactions that provide benefits to the family or individuals However, when one spouse's actions stemming from these transactions violate the legal rights of the other spouse, family members, or other parties, they are liable for compensation This provision in the law establishes the legal foundation for affected individuals to hold the responsible spouse accountable for damages.

Rights and obligations of husband and wife to meet their family’s essential

"1 Husband and wife have the right and obligation to make transactions to meet their family’s essential needs

2 When husband and wife have no common property or their common property is not enough to meet their family’s essential needs, they shall contribute their separate property according to their financial capacity."

This regulation outlines the rights and obligations of married couples in establishing and executing civil transactions Its purpose is to ensure the provision of essential family needs Consequently, neither spouse can hinder the other from engaging in transactions that fulfill these necessities, as doing so would compromise the well-being of the family unit.

39 Clause 20 Article 3 of the Marriage and Family Law 2014

41 common interests of the family At the same time, husband and wife cannot request or fix that only the other party has to perform civil transactions to meet the essential needs of the family, because this is a common obligation of both husband and wife Meeting the essential needs of the family is the common obligation and responsibility of both husband and wife Every day, husband and wife will be obliged to perform civil transactions in order to meet the essential needs of the family's daily life such as food, clothing, accommodation, etc

Usually the common property of the family will be used to meet the common basic needs of the family However, this amount of property is not always enough to meet that, so the law recognizes the obligation of husband and wife to contribute separate property according to each person's economic ability to fulfill the civil transactions to meet the basic needs of the family This case only arises when the common property contributed by husband and wife is not enough to meet the family's normal living needs Not meeting enough does not mean that they will no longer meet, instead, for the sake of the family, husband and wife are obliged to contribute more separate assets to the common property for maintaining civil transactions to ensure basis needs However, the contribution of separate property is not an equal contribution but rather a contribution based on the economic ability of each party, this ensures that the husband and wife can both ensure the common interests of the family, also to have their own property to ensure their own life

2.1.4 Transactions related to the home are the sole domicile of the spouses

For the family, ensuring stable accommodation is always an important issue, it is one of the essential needs of the family The right to a place to live is recognized in the Constitution of Vietnam and guaranteed by the provisions of marriage and family law Specifically, Article 31 of the Law on Marriage and Family 2014 stipulates that transactions related to housing are the only residences of spouses:"The establishment, making and termination of transactions related to the home being the sole domicile of husband and wife shall be agreed by both of them In case the home is under the separate

2.1.4 Transactions related to the home are the sole domicile of the spouses

Transactions with third parties in good faith related to bank accounts,

In order to ensure safety, stability, speed and facilitate the development of civil exchanges, the Marriage and Family Law 2014 has provided for mechanisms to ensure the rights of third parties in special transactions related to the property of spouses Article

32 of the Marriage and Family Law 2014 provides for it

"1 In transactions with third parties in good faith, the spouse who is the holder of the bank or securities account shall be regarded as the person having the right to establish and make transactions related to that property

2 In transactions with third parties in good faith, the spouse who is possessing a movable asset which is not required by law to be registered for ownership shall be regarded as the person having the right to establish and make transactions related to that asset in case the Civil Code prescribes protection of third parties in good faith"

40 Lê Thị Dung (2016), Chế độ hôn sản trong Luật hôn nhân và gia đình năm 2014, Master thesis of jurisprudence, School of Law (Hanoi National University), Hanoi, page.41

In the current economic climate, the use of bank accounts is prevalent among individuals and businesses alike Investors require bank and securities accounts for efficient transaction execution Legal entities have the right to engage in legal activities related to their accounts, as per financial and banking regulations Third parties are presumed to act in good faith when participating in transactions related to bank or securities accounts held by spouses In such cases, spouses are legally authorized to establish and transact assets, and third parties interacting with them are considered to be acting in good faith The Marriage and Family Law of 2014 aligns with this approach, reflecting the practicalities of married life and the coherence of relevant laws.

In real life, when signing civil transactions, the parties will often not know each other's marital status, in addition, for some types of civil transactions, the law does not require the parties to learn about the marital status of the other party Special is transactions involving assets that are real estate do not have to register ownership According to the above provisions, the third person will be considered be in good faith when participating in a transaction related to the property is not registered with a spouse who owns this property This regulation is in line with the practice of civil exchange life

The provisions of Article 32 stated that they have created favorable and proactive conditions for spouses in actively participating in civil exchanges At the same time, protect the legitimate rights and interests of third parties when participating in civil transactions with spouses in the above cases In the above transactions, the third person will not necessarily learn about the marital status of a spouse, but only need to establish a civil transaction as usual The law stipulates that they are be in good faith in these cases and will be protected by the provisions of the Civil Code in cases of dispute

It can be said that the general provisions on the property regime of husband and wife under the Law on Marriage and Family 2014 have ensured to cover the actual cases when husband and wife choose to apply other types of property regime These

Codified marital property regulations protect the rights of spouses and families while also safeguarding the interests of related parties These regulations establish clear guidelines for the ownership and distribution of property within a marriage, ensuring fairness and equity for all parties involved By defining the legal rights and responsibilities of spouses in relation to their property, these regulations provide a framework for navigating the complexities of marital finances and safeguarding the interests of all individuals affected by the property regime.

Current regulations on establishment of the property regime of spouses under the

2.2.1 The time of establishment of the property regime of spouses as agreed upon

Article 47 of Vietnam's Marriage and Family Law provides for "The agreed matrimonial property regime shall be established on the date of marriage registration" According to this provision, the property regime of the husband and wife under the agreement will be formed and applied to the marriage relationship of the husband and wife at the time the parties have registered their marriage

The establishment of the husband and wife's property regime by agreement is closely related to the establishment of written agreement on the husband and wife's property regime In order to establish the husband and wife's property regime as agreed upon, the parties must establish a written agreement on the husband and wife's property regime before the parties register the marriage This document serves as an indispensable condition and the basis for the formation and establishment of the property regime of husband and wife according to the agreement 41

The parties can freely discuss and reach an agreement for a long period of time so that a written agreement can be drawn up in accordance with the will, family circumstances, and economic conditions of the parties, but it must be drawn up and completed in both content and form before the time the parties register their marriage This is the fundamental difference between the type of agreement on property regime and other agreements between husband and wife during the marriage period After establishing a written agreement on the husband and wife's property regime according to the agreement, the husband and wife will have to bring this document to be notarized or authenticated However, the fact that the parties notarize the written agreement on the

41 Article 7 of Decree No 126/204/ND-CP detailing a number of articles and measures to implement the Marriage and Family Law

45 property regime has not yet given rise to the validity of this agreement, but only ensures the formal conditions of the agreement The husband and wife's agreement on the property regime shall only take effect from the time the man and woman register their marriage and become husband and wife After the parties establish a written agreement on the property regime that meets both content and form, this document will serve as the basis for the parties to establish the husband and wife's property regime according to the agreement It can be seen that, from the fact that the parties register their marriage, the husband and wife's property regime is established and the husband and wife's agreement on the property regime takes effect

2.2.2 Form of agreement on the property regime of spouses

The form can be understood as the outward expression of the content of the agreement, or can be understood as the form to express the content 42 The husband and wife's agreement on the property regime is basically a civil transaction and also has certain formal conditions Article 47 of the Law on Marriage and Family 2014 stipulates:

“For a married couple that selects the agreed property regime, this agreement shall be made in writing before their marriage and be notarized or certified.”

According to the above provisions, the agreement of husband and wife on choosing the property regime must be made in writing Writing is a more effective means of keeping information than the parties just making an agreement orally Since the marriage of husband and wife always takes place over a long period of time, it is perfectly reasonable for the parties to agree in writing and ensure the ability to preserve the will of spouse on issues related to the property regime of conjugal In addition to making a written agreement, the parties must perform the notarization or authentication The notarization and certification of this agreement makes the written agreement guarantee its legitimacy and has very high evidence value This contributes to protecting the interests of spouse as well as ensuring that the spouse are responsible for strictly implementing the agreed contents, limiting disputes related to the conjugal's property

Notary organizations and commune-level People's Committees employ knowledgeable notaries who possess expertise in transactions and contracts These professionals guide spouses in drafting property regime agreements that align with their unique family circumstances, economic situations, and legal boundaries outlined in Law 43.

2.2.3 The contents of the agreement of the spouses on the property regime

With regard to the type of property regime of husband and wife under agreement, the husband and wife are free to agree on the contents related to the property relationship of the husband and wife to apply the marriage period Regulations on basic contents that husband and wife can agree on are in Article 48 of the Law on Marriage and Family These basic contents are the basis for guiding husband and wife to come up with reasonable agreements regarding their property (ownership) relationship, specifically as follows:

"1 The basic contents of an agreement on the property regime include: a/ Property determined as common property and separate property of the husband and wife; b/ Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs; c/ Conditions, procedures and principles of property division upon termination of the property regime; d/ Other related contents

2 For matters arising in the implementation of the agreed property regime which have not been agreed or unclearly agreed by husband and wife, Articles 29, 30, 31 and 32 of this Law and corresponding provisions of the statutory property regime shall apply."

These can be seen as the foundational content for building the property relationship of husband and wife 44

44 Ngô Thị Anh Vân (2016), Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hôn nhân và gia đình Việt Nam, Master's Thesis in Law, Ho Chi Minh City University of Law, Ho Chi Minh City, page.60

2.2.3.1 Determination of property of spouses

In the agreement of husband and wife on the property regime, there must be basic content on the determination of common property and separate property of husband and wife When husband and wife have determined the scope of common property and separate property, husband and wife will agree and agree on the rights and obligations for these types of property Article 15 of Decree 126/2014/ND-CP clearly stipulates as follows:

"1 In case the husband and wife choose to apply the property regime as agreed upon, the husband and wife may agree on the determination of property according to one of the following contents: a) Property between husband and wife includes common property and separate property of husband and wife; b) There is no separate property between husband and wife between husband and wife, but all property acquired by husband and wife before marriage or during marriage is under common property; c) There is no common property between husband and wife, but all property acquired by husband and wife before marriage and during the marriage period belongs to the person owning such property; d) Determined by other agreement of husband and wife

Current regulations on amendments and supplements to agreements on property

2.3.1 Contents of regulations on amendments and supplements to the agreement on property regime of spouses

The Law on Marriage and Family of Vietnam recognizes the right to amend and supplement the agreement of the spouses in Clause 1, Article 49 of the Law on Marriage and Family 2014 This is an important legal basis for the couple to carry out acts of amending and supplementing the contents of the agreement on the property regime

Regarding the form of amending and supplementing the contents of the agreement on property regime, the law provides similar to the form of the agreement on the property regime made before marriage 50 Amendments to the agreement must be made in writing

50 Clause 2, Article 49 of the Marriage and Family Law 2014

54 and must be notarized or certified Amendments and supplements to the agreement on the property regime of the spouses must be notarized at the notary practice organization, where the couple has made the notarization of the agreement on the property regime of the spouse before marriage 51

The scope of amending and supplementing the content of the conjugal's agreement on the property regime is very wide 52 The spouse can amend and supplement part of the original agreement Or the spouse can amend and supplement the entire established agreement, which means that the husband and wife can completely establish a new agreement on the property regime to apply In addition, the conjugal also have the right to amend and supplement according to agreement in the direction of applying the statutory property regime 53

When amending or supplementing a property regime, the alterations must adhere to Articles 29-32 of the Law on Marriage and Family 2014 Paramount importance is placed on safeguarding the rights of spouses, family members, and third parties involved in civil transactions Ensuring their well-being and interests is crucial throughout the process, both presently and in the future.

2.3.2 Effectiveness of amendments and supplements to the agreement of spouses on property regime

Once the elements of form and content have been ensured, the amended or supplemented agreement shall take effect from the date of notarization or certification 54 Unlike the provisions on establishment of agreements, and property regimes of spouses, which are notarized or certified agreements that do not arise immediately, the written amendments and supplements to the agreement on the property regime of spouses will take effect from the time of notarization or certification The time when the agreement to amend and supplement the content of the husband and wife's property regime takes effect does not depend on the time when the spouses make the amendment, but it is

51 Clause 2, Article 51 of the Notarization Law 2014

52 Nguyễn Hương Giang (2017), Chế độ tài sản của vợ chồng theo thỏa thuận với việc bảo vệ quyền và lợi ích hợp pháp của người thứ ba, Master's Thesis in Law, Hanoi Law University, Hanoi, page.43

53 Clause 1, Article 17 of Decree No 126/2014/ND-CP

54 Clause 1, Article 18 of Decree No 126/2014/ND-CP

55 counted from the time of agreement are notarized or authenticated by competent agencies or organizations in accordance with law

To protect third parties, spouses are required to disclose information regarding their property regime in transactions involving the third party Should a spouse fail to fulfill this obligation, resulting in damages incurred by the third party during a civil transaction, they are liable for compensation The third party will be considered acting in good faith and protected under the provisions of Civil Code 55.

In order to protect the third party involved in the agreement on the property regime being amended or supplemented and to prevent cases where the husband and wife change the content of the agreement on the property regime to evade their obligations The law has provisions to protect the interests of third parties Accordingly, the law stipulating the property rights and obligations arising before the time of making the amendment and supplement to the property regime of the husband and wife will still be legally valid 56

It can be said that the law recognizes the right to amend and supplement the agreement of spouses on the property regime is important in ensuring the rights of spouses, family members and ensuring both rights and interests for third parties In addition, allowing spouses to amend and supplement the agreement on property regime is also in accordance with socio-economic conditions and requirements from the common life between husband and wife, because the written agreement on the property regime can be considered as a tentative document for issues arising in the future of married life on the relationship of property, and it may be appropriate for a certain period but can also be the cause of difficulties for the life of the spouse and for their family when circumstances, living conditions, economic conditions have been significantly changed and the contents of the established agreement are no longer suitable

55 Article 16 and Clause 1 Article 18 of Decree No 126/2014/ND-CP

56 Clause 2 Article 18 of Decree No 126/2014/ND-CP

Declaration of invalidity of the agreement of the spouses on the property regime

Article 50 of the Marriage and Family Law 2014 stipulates:

" 1 An agreement on the matrimonial property regime shall be declared to be invalid by a court when: a/ It fails to meet the conditions on effect of transactions prescribed the Civil Code and other relevant laws; b/ It violates Article 29, 30, 31 or 32 of this Law; c/ Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members

2 The Supreme People’s Court shall assume the prime responsibility for, and coordinate with the Supreme People’s Procuracy and the Ministry of Justice in, guiding Clause 1 of this Article."

The law has made three cases to declare the agreement on the couple's property regime invalid The content of each case is as follows:

(1)In case of "Failure to comply with the effective conditions of the transaction specified in the Civil Code and other relevant laws" The agreement of the spouse on the property regime is essentially a civil transaction so it must satisfy the conditions of a civil transaction: The person involved in the transaction has legal capacity, civil act capacity; The purpose and content of the transaction does not violate the prohibitions of the law, not social ethics; Participants in the transaction are entirely voluntary 57

Accordingly, the agreement on the property regime of the spouse will be invalidated if it violates one of the following conditions:

Firstly, the conditions on the subject, namely that the spouses must have civil law capacity and civil act capacity in accordance with the agreement on the established property regime 58 This case is cited on the basis of a combination of the provisions of the Civil Code and the Marriage and Family Law on the conditions of marriage The

57 Article 117 of the Civil Code 2015

58 Article 19 of the Civil Code 2015

57 marriage and family law does not specifically require the conditions of the behavioral capacity of the parties to the agreement on the property regime, so it can be said that those who meet the conditions of marriage can participate in the establishment of an agreement on the property regime According to the Law on Marriage and Family 2014, in order to get married, a man and a woman must not lose their civil act capacity Therefore, it can be inferred that men and women who have lost their civil act capacity will not be able to participate in the agreement on the property regime of husband and wife Thus, the subject of the agreement on the property regime must be a man who reaches 20 years old and a woman who reaches 18 years old and does not fall into the cases where marriage is prohibited and does not lose civil act capacity

Secondly, the condition of the willingness of the subjects involved in the transaction The nature of the civil transaction or the nature of the agreement is the unity of will, the willingness to enter into agreements and the expression of the will of the parties to the agreement Spouses entering into agreements must be on the basis of voluntary and not coercion, deceit, intimidation, , they are not bound by agreements against their will

Thirdly, the purpose and content of the agreement of the spouses on the property regime must not violate the prohibitions of the law on marriage and the family, other laws are relevant and not contrary to the ethics of society

Fourthly, the agreement of the spouses will have to meet the conditions of the form that the marriage and family law has specifically stipulated that the agreement of the spouses on the property regime must be made in writing and must be notarized or certified

Where the agreement on the property regime of spouses violates provisions of Articles 29, 30, 31, and 32 of the Law on Marriage and Family 2014, it breaches the law's general provisions on property regimes These provisions apply to all property regimes, regardless of whether they are statutory or agreed upon by the spouses.

58 agreement of the spouses on the property regime violates one of the provisions on the general principles of the property regime of the spouses; the provisions on the equal rights and obligations of the spouses in meeting the essential needs of the family; the provisions on transactions related to the house is the sole residence of the spouse; the regulation on related transactions of the spouses; the provisions on transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets not required by law to be registered for ownership and use

(3)In case the agreement of the spouses on the property regime "seriously violates the right to alimony; the right to inherit; other legitimate rights and interests of fathers, mothers, children and other members of the family." Specifically, the husband and wife's agreement will be invalidated if there are contents in the following cases: to evade the support obligation specified in Articles 110 to 115 of the Law on Marriage and Family or to deprive the spouses of the inheritance rights, the heir does not depend on the content of the will as prescribed by the Civil Code or violates the lawful rights and interests of the father, mother, child and other family members as prescribed by the Law on Marriage and Family and other relevant laws 59

When satisfying the invalid grounds, the Court shall declare the agreement on the property regime of the spouse under the agreement partially invalid or completely invalid The invalidation of the agreement of the spouses on the property regime will create the following legal consequences:

In case the agreement on the property regime of the spouse is declared invalid by the court in its entirety, the property regime of the spouses shall be prescribed by law 60 Accordingly, the provisions of the law governing matters relating to the property relationship of the spouse shall apply in place of the terms agreed upon by the parties

59 Point b Clause 2 Article 6 of the Joint Circular No 01/2016/TTLT-TANDTC-VKSNDTC-BTP

60 Point a Clause 1 Article 6 of Joint Circular No 01/2016/TTLT-TANDTC-VKSNDTC-BTP

59 from the time the marriage was established 61 Once the statutory property regime applied, the husband and wife cannot re-apply the agreed property regime

In case the agreement on the property regime of the spouse is declared partially invalid, the contents that are not invalid shall still apply; for the invalidated content, the corresponding provisions on the property regime of spouses as prescribed by law shall apply 62 In this case, the property regime of the spouses under the agreement still exists

If the contents of the agreement are voided, the provisions of the marriage and family law shall be applied to adjust If the contents are not invalidated, the spouses may still be entitled to maintain the implementation or modification and supplementation in accordance with the will and aspirations Basically, this happens when the clause in the agreement is invalid does not affect the remaining terms of the agreement

Basically, when the agreement on the property regime of the spouse is voided, the rights and obligations of the spouses under the agreement will not arise from the time of establishing the marital relationship The fact that the law stipulates the application of the statutory property regime to regulate the relationship of spouses can be considered reasonable Because, the legal regulations on property regimes always aim to ensure harmony, fairness and equality in all matters related to the property relationship of spouses 63 Although not really true to the wishes, wills of the parties, the provisions of the law will still ensure the rights and interests of spouses and other subjects with related rights and interests

Termination of the property regime of spouses under the agreement

2.5.1 In case of termination of the property regime of spouses under the agreement because a spouse has died or is declared dead by the court

In the event of a spouse's death or legal declaration of death, the marriage terminates legally, along with the property regime between the deceased and surviving spouse This occurs regardless of the form of property regime, as the agreement is solely applicable to the marital relationship With the cessation of the marriage, the property regime becomes invalid and terminates.

Upon the division of an estate following the death or presumption of death of one spouse, the property regime agreement between the spouses governs the distribution of their common and private property, determining each spouse's inheritance share, as per the legal principles established in this case.

Clause 2, Article 66 of the Law on Marriage and Family stipulates: " When there is a request for division of the estate, unless the couple has reached agreement on the property regime, common property of husband and wife shall be divided into two The

64 Article 65 of the Marriage and Family Law 2014

61 property portion of the spouse who is dead or declared to be dead by a court shall be divided in accordance with the inheritance law."

Upon termination of the agreed-upon property regime due to the demise or legal declaration of death of a spouse, the agreement on the property regime governs the determination of common and separate property between the surviving and deceased spouses (presumed deceased) The agreement's stipulations on property division principles and procedures apply, provided they adhere to the rights of alimony, inheritance regardless of testamentary provisions, and the legitimate interests of family members, including parents and children In the absence of a clear agreement or upon failure to reach an agreement, the legal provisions prescribe the property division process.

After determining the private property of the spouse who died first or is declared dead by the Court on the basis of applying the agreement on the property regime of the spouse, the provisions of the law on inheritance shall apply to divide the inheritance of the deceased or presumed deceased if requested

2.5.2 In case of termination of the property regime as agreed upon due to divorce

Divorce is one of the events leading to the termination of marital relations, conjugal relations in accordance with the law When a judgment or decision of the Court takes effect on the divorce, the two parties of men and women will no longer be husband and wife of each other This leads to the husband and wife's property regime no longer existing and regardless of the statutory property regime or the agreed property regime will also be terminated In other words, the property regime of spouses under the agreement will be terminated when the spouses divorce Once divorced, the parties are no longer the subject of the agreement on the matrimonial property regime and will not

65 Point c Clause 1 Article 48 of the Marriage and Family Law 2014

62 be required to continue to perform or maintain the terms contained in the agreement, except for the provisions on property division when this property regime terminates upon divorce

The legal consequences when the agreed-upon property regime terminates in this case is that the agreement on the husband and wife's property regime will be applied to solve property-related issues - division of the two's assets

Clause 1, Article 59 of the Law on Marriage and Family 2014 stipulates: "In case of applying the agreed matrimonial property regime, the settlement of property upon divorce must comply with such agreement In case the agreement is insufficient or unclear, the settlement must comply with corresponding provisions of Clauses 2, 3, 4 and 5 of this Article and Articles 60, 61, 62, 63 and 64 of this Law."

Based on the spirit of the provisions of law, when the husband and wife's property regime terminates due to the divorce of the parties and the parties have an agreement on the issue of property settlement upon divorce, this agreement of the husband and wife can be applied to resolve their property relationship (divide property) The agreement on the couple's property regime is still valid to solve the problem of property division of the husband and wife when this property regime ends The above provisions ensure the right to free will and freely dispose of property of husband and wife when they terminate the marriage relationship

Once the husband and wife relationship has been established, one of the two people will not want a divorce or it is impossible to predict when in the future they will have to divorce, but when the couple chooses the agreed property regime, the issue of property settlement upon divorce is a matter of concern to the husband and wife and is expected to include provisions related to this issue in the agreement 66 The husband and wife's agreement on this issue is consistent with the provisions at Point c, Clause 1, Article 48 of the Law on Marriage and Family – conditions, procedures and principles for property division upon termination of the property regime When the husband and

Trong bài viết về "Áp dụng chế độ tài sản theo thỏa thuận", TS.Đoàn Thị Phương Diệp (2016) đề cập đến giải pháp phân chia tài sản sau khi kết thúc quan hệ vợ chồng dựa trên sự đồng thuận giữa hai bên Chế độ tài sản theo thỏa thuận cho phép các cặp vợ chồng thống nhất các điều khoản về sở hữu, sử dụng và phân chia tài sản, đảm bảo quyền lợi của cả hai và tránh tranh chấp sau khi ly hôn.

63 wife have agreed on the division of property in case of termination of the property regime upon divorce, this provision will be applied to settle the property issue between the two parties In case in the written agreement on the property regime, the husband and wife do not reach an agreement or the agreement is unclear on the division of property upon divorce or the agreement is declared invalid by the Court, the provisions of the statutory property regime shall be applied 67 Specifically, the corresponding provisions in Clauses

2, 3, 4, 5, Article 59 and articles 60, 61, 62, 63 and 64 of the Law on Marriage and Family are applied to divide the property of husband and wife when divorce 68

To ensure the validity of a spousal property agreement regarding property division upon divorce, specific conditions must be met The agreement's terms must adhere to the stipulations outlined in articles 29 and 30 to avoid any conflict or inconsistencies with existing legal provisions.

31 and 32 of the Law on Marriage and Family 2014 The content of this clause must not seriously violate the right to support, especially the right to support after divorce 69 ; must not violate the inheritance rights and other lawful rights and interests of parents, children and other family members Only when this condition is satisfied, the agreement on property division when the agreed property regime terminates due to divorce will be applied

2.5.3 The case of annulment of an illegal marriage

An unlawful marriage is a legally recognized union between a man and a woman that violates certain conditions, and annulment is the legal process by which such a marriage is terminated This differs from divorce and death, which also end a marriage, as annulment implies the marriage was never valid due to specific violations of the conditions required for a legal marriage.

67 Point a Clause 1 Article 7 of Joint Circular No 01/2016/TTLT-TANDTC-VKSNDTC-BTP

68 Point b Clause 1 Article 7 of Joint Circular No 01/2016/TTLT-TANDTC-VKSNDTC-BTP

SUB-CONCLUSION

is to present the research results and evaluate the provisions of Vietnamese law on the property regime of spouses as agreed Vietnam's marriage and family law has recognized the property regime of spouses under the agreement after a long period of unrecognized in the documents of the Marriage and Family Law of 1959, 1986, 2000 The recognition of the property regime as agreed upon in the Marriage and Family Law 2014 is a new step in the process of renewing the thinking of lawmakers, who have listened to the rhythm of society, of life and of the market economy

The provisions of vietnam's marriage and family law have created basic orientations and guidelines for the process of establishing agreements on the property regime of spouses The provisions of marriage and family law ensure that spouses are guaranteed to exercise their right to self-determination of their property on the basis of an agreement with the other spouse Although this type of property regime is recorded for the first time, the provisions of the marriage and family law have well ensured the right to decide and the freedom of will of the spouses, but this freedom is guaranteed by law to exercise within certain limits such as ensuring the rights and interests of the wife, husband, family and indispensable is the rights and interests of the third person

The research results presented in Chapter 2 will be integrated with the contents of Chapter 1 to serve as a research premise for the contents of the assessment of the status of the provisions on the property regime of spouses of the current Marriage and Family Law of Vietnam will be presented in Chapter 3 below

Practical application of Vietnamese marriage and family law on the property

Up to now, the Law on Marriage and Family 2014 has spent nearly 8 years in legal effect, which means that the provisions on the property regime of spouses under the agreement have also been applied and implemented in practice for nearly 8 years It must be noted that the provisions of the law on property regimes under the agreement have ensured the progress of the law when adjusting the marriage relationship and protected the right of the husband and wife to freely decide the property that they made before and during the marriage period However, the practice of applying the law on the property regime of spouses under the agreement shows that very few people currently choose this type of property regime to apply to their marital relationship

According to statistics, some notary offices, redistribution offices in Ho Chi Minh City Hanoi, Ho Chi Minh City has carried out notarization procedures, making a license for the writtenagreementof the couple on property before marriage But this number is still very limited Law firms have also reported that some clients have asked for advice on the couple's property regime under the agreement but they have only stopped at finding out

In fact, it is also shown that, due to the influence of customs, psychology and economic status in the family, the proportion of husbands in the name of papers owning the family's property is much higher than that of the wife In addition, Vietnamese people before living together on the basis of love feelings, couples often have a hesitant mentality when it comes to discussing property regimes before marriage because it is too clear, promote the material element of lightening the feelings of couples, promoting the factor of division Husbands often consider it a step to prepare for divorce This makes

68 the establishment of the Property Regime as agreed upon by the couple is still quite new in practice, including in urban areas and rural areas although the property regime under the agreement has been in place for a long time in the provisions of Vietnamese law 75

There was a statistic made in 2018 through 02 questions with 100 people about the choice of the property regime of the couple under the agreement as follows The author of the statistics article asks two questions: (1) Do you know the regulation of the property regime of the spouses under the agreement The answer "Yes" accounted for 55% and "No" accounted for 45% (2) Understanding and knowing about the property regime of the couple under the agreement, do you choose this property regime? The answer "Yes" accounted for 36% and "No" accounted for 64% In addition, according to statistics at the People's Committee of Phuc Thanh ward – Ninh Binh city, Ninh Binh province, in 03 years from 2015 to 2017, no couple chose the conjugal property regime under the agreement Accordingly, in 2015 there were 103, in 2016 there were 67, in

2017 there were 80 marriage registrations but there were no cases of choosing the property regime as agreed It can be seen that after nearly 2 years of the Marriage and Family Law 2014 taking effect, the provisions on the property regime of the couple have not entered into practice the married life of many couples, although, these provisions, if applied, will bring many benefits to the property relationship of the couple during the marriage period 76

To serve this graduation essay, the author also developed a survey related to

This study examines the perceptions of marital property regimes among various demographics The survey included participants from universities across Vietnam, including Hanoi University of Social Sciences and Humanities, Hanoi National University, School of Industrial Fine Arts, and Vietnam Academy of Agriculture The age range of participants spanned from 16 to over 30, with the most significant representation from the 18-30 age group This survey provides insights into the attitudes and understanding of marital property regimes among young adults in Vietnam.

75 Vương Ngoc Oánh (2021), Chế độ tài sản của vợ chồng theo thỏa thuận ở Việt Nam, Master's Thesis in Law, School of Law (Hanoi National University), Hanoi, page.67

76 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.66, 67

77 https://docs.google.com/forms/d/16z2ikCgyA7_jRUJImI3kKmUpx3YU0FBexSvZ1uznN50/edit#responses

6 main questions and these questions are more detailed than the one above In turn, the questions are (1) Do you know about the content of the provisions of the law on the property regime of spouses under the agreement?; (2) Can you disseminate and propagate the contents of the provisions of the law on the property regime of spouses under the agreement? (3) Do you want to explore the issues of the property regime applicable to spouses before the marriage period? (4) The property regime under the agreement creates opportunities for the spouses before marriage is agreed on matters related to the property applicable during the marriage period, do you want to apply? (5)

Do you want to use legal services (lawyers/legal experts) to help you make an agreement with your spouse on property issues during the marriage process? (6) Do you assess your willingness to pay attorney's fees (or other legal counseling fees) to help you agree with your spouse on property issues during the marriage process?

The survey results of the first two sentences showed an unsatisfactory sign of people's perception of the couple's property regime under the agreement Of the 80 people surveyed, 58.8% were unaware of the couple's property regime under the agreement More than this figure, up to 61.3% of those surveyed were not disseminated and propagated about the content of the provisions of the law on the property regime of spouses in accordance with the agreement The fact that people do not know and are not aware of this type of property regime is a huge cause that affects the fact that the property regime of spouses is not much chosen in the practice of applying the law It is not possible to require these persons to choose the type of property regime as agreed upon when they do not know and are not propagated to know about the contents of the law relating to the property regime under the agreement It can be seen that the work of disseminating and propagating the law on property regimes as agreed by competent agencies, organizations and tasks has not achieved high results

However, the results of the survey also showed positive figures That is the number of young people aged 18-30 whose attitude towards the type of property regime under the agreement is very large accounting for about 90% In addition, the number of young people who want to choose the property regime of spouses under the agreement

70 is 93.8% This is a positive sign that young people want to learn and apply the property regime of spouses This demonstrates that young people are gradually becoming proactive in understanding legal issues related to their marriage and property In addition, the survey results show that the proportion of people who choose the property regime under the agreement is likely to increase greatly in the future because there will be many young people who are willing to pay to use legal services such as lawyers' or other legal advice services to help them make agreements on the property regime

In recent years, there have been many divorce cases and property disputes of couples that have caused a stir and affected the effort, time, money, reputation of the couples and those involved It can be mentioned that the case of 3 years of litigation, the dispute between Mr Dang Le Nguyen Vu and Ms Le Hoang Diep Thao (Trung Nguyen coffee) shocked the public with the dispute to divide assets up to nearly VND 8,400 billion Or the divorce of VND 2,000 billion between Mr Tran Van Ten - Deputy Director of Five Star International Group and Ms Pham Thi Huong - Deputy Director of Atlantic Assessment Joint Stock Company, It can be seen that in practice there are many divorces that have disputes over large assets, the issue of property identification is a headache for many litigants and trouble for many courts Therefore, establishing the property regime of spouses under the agreement can be a solution to help the problem of asset division be more favorable, making disputes easier to resolve, minimizing more time, effort, money, court fees,etc, for the involved parties 78

Inadequacies and causes of inadequacies of the application of Vietnamese

The conjugal property regime under the agreement serves the property requirements in marriage, but its adoption remains limited Factors contributing to this include:

Due to lack of awareness, many couples entering marriage in Vietnam are unaware of the legal property regimes available to them This results in a majority of marriages being subject to the default statutory property regime Young couples, driven by youthful idealism and trust, often neglect to consider property considerations during their marriage registration.

Many individuals continue to cling to traditional views and fail to comprehend the benefits of establishing a property regime agreement before marriage Some mistakenly believe that marital property should be governed solely by long-standing customs, leading them to overlook the importance of such agreements By clarifying property rights and responsibilities, these agreements provide clarity and protect the interests of both spouses.

Thirdly, the work of organizing the propagation and dissemination of the provisions of the marriage and family law on the property regime of husband and wife under the agreement has not been highly effective Popular content, legal propaganda is still mainly aimed at issues such as to reduce child marriage, inbreeding, or reduce domestic violence, This makes the provisions of the law on the regulation of property of husband and wife not really attached to the life of the people, although this is a close- knit right, affecting the later married life of everyone

3.2.2 Inadequacies in the provisions of the law on marriage and family on the property regime of husband and wife as agreed

The regulations on the property regime of spouses in general and the property regime of spouses under the agreement in particular have been applied for nearly 8 years

On the basis of studying the marriage and family laws of the two countries, France and Thailand, on the property regime of spouses and the provisions of the current Vietnamese

72 law along with the practice of applying the law over a period of nearly 8 years, the writer noticed the provisions of the marriage and family law on the regime of property of husband and wife has gradually revealed certain inadequacies In turn, these contents will be presented in each section below

3.2.2.1 Regulations on establishing the property regime of husband and wife by agreement

Although Vietnam's marriage and family laws allow spouses to choose the agreed property regime, the law does not have a specific way of controlling the selection of this property regime If compared to the laws of the two countries, France and Thailand, Vietnamese law does not control well the issue of spouses choosing the type of property regime This may indirectly affect the rights of the third person

Compared to the laws of France and Thailand, these two countries have legal provisions that create a very good control mechanism for spouses to choose the property regime according to the agreement by a manual sequence that involves the selection and establishment of marriages Accordingly, the laws of both countries require that the agreement of the spouses be handed over to the civil status officer for storing information and the choice of the property regime of the couple under the agreement will be recorded in the marriage certificate This recognition brings great significance to the transparency and publicity about the agreement on the property regime of the couple This is a form of state through a competent representative agency noting the contents of the agreement of the spouses on the property regime This also ensures transparency to help third parties engaged in civil transactions with spouses to be more proactive in accessing the information and contents of the agreement on property relations between the couple

In comparison with the provisions of vietnam's marriage and family law, the law only stipulates that the agreement of the spouses only needs to be made in writing notarized or certified to satisfy the conditions for choosing the property regime of the couple as agreed In addition, there is no other provision in the law regarding the parties having to hand over the written agreement to the judicial-civil status officer where the parties register their marriage to record in the marriage registration dossier or the

73 marriage registration certificate According to Vietnam's civil status law, when registering marriage, men and women must carry the following documents: (1) Marriage registration declaration; (2) Identity card/passport/id card or other documents with photo stickers and valid for use; (3) Certificate of marital status; (4) The court's decision or divorce judgment has taken legal effect if it has previously been married and divorced 80 Thus, when men and women register their marriage, Vietnamese law does not require the parties to hand over the written agreement of the spouses to save in the marriage register Similarly, the marriage certificate of the couple also does not have a section that records the content of the property regime that the couple chooses If according to the provisions of Vietnamese law, if the spouses do not actively publicize the selection of the property regime as agreed, only spouses, family members, notaries are those who know about the couple's choice of property regime as agreed This will reduce the effectiveness of the State's management of the marriage of couples when not grasping their property regime In addition, this issue also reduces the publicity and transparency of information about the choice of the type of property regime of spouses for the third person Although, the third person will be considered being in good faith and protected by law, however, they have more or less been affected by their legitimate rights and interests by not being informed of information that is detrimental to them Therefore, the absence of a mechanism to control the selection and establishment of the property regime of spouses is a major shortcoming in the provisions of the Law on Marriage and Family of Vietnam on the property regime of spouses

3.2.2.2 Regulations on amending and supplementing the agreement on the property regime of husband and wife

Currently, just like the marriage and family laws of many countries in the world such as the US, France, Thailand, the law on marriage and family of Vietnam also recognizes the rights of spouses when they have agreed on the property regime of the

Theo quy định tại Điều 10 Nghị định 123/2012/NĐ-CP, giấy tờ cần chuẩn bị khi đăng ký kết hôn gồm có: 02 tờ đơn đăng ký kết hôn; Bản chính giấy chứng nhận độc thân hoặc bản sao giấy chứng nhận độc thân đã được công chứng, chứng thực; Bản chính bản trích lục hộ khẩu gia đình tại nơi thường trú hoặc bản sao được công chứng, chứng thực; Chứng minh nhân dân hoặc thẻ căn cước công dân của người đăng ký kết hôn; Giấy tờ khác nếu có yêu cầu.

74 spouses, they may amend and supplement the agreement on the property regime of the spouses as agreed However, the legal provisions on amending and supplementing the agreement of spouses during the marriage period have not yet demonstrated a mechanism to control the exercise of this right by the spouse

Thelaws of the two countries, France and Thailand , have regulations that create a very good control mechanism for this issue These States allow spouses the right to amend and supplement the contents of the agreement on the property regime of the spouse within certain limits such as the conditions on the time of amendment; conditions for amendments and supplements must be approved by the Court in some cases; conditions for public notification of the amendment; conditions on amendments and supplements must be recorded in the paper (book) of marriage registration;

Currently, Vietnamese law stipulates that it is very easy for spouses to amend and supplement the agreement on the property regime Specifically, there is no need to meet the conditions on the time of additional amendments; there are no grounds for amendments or additions; content conditions; Spouses only need to choose the content they want to amend and make a notarized document to have a new agreement that takes legal effect It is noteworthy that the scope of amendments and supplements to the agreement of the spouse is very wide, the spouse may change part or possibly the whole contents of the agreement, in other words, completely establish the previously established content without having to meet the basis such as change for the benefit of the family, or because one party to commit acts of destruction of property that affects the interests of the other party or of a family member, ; or conditions of time after 1 year or 2 years (as french law); There are no conditions for content

Recommendations to improve the Vietnamese marriage and family law on the

3.3.1 Some proposals to improve the effectiveness of application of Vietnamese law on the property regime of husband and wife under agreement

In order to ensure that the provisions of the law on the property regime of spouses under the agreement are implemented effectively in practice, bringing many meanings to men and women preparing to get married, it is necessary to implement some of the following solutions

Firstly, it is necessary to carry out the propaganda and dissemination of education on marriage and family law in general and on the property regime of spouses according to the agreement in particular Agencies, organizations and individuals responsible for propagating must complete and supplement contents related to the property regime of spouses according to the agreement, ensuring that the conveyed content must be complete, rich, suitable for the object of information transmission and have vivid examples to help people understand and receive information related to the type of regime Only with the right understanding of the property regime can people choose to agree on the property regime of the couple

Competent agencies and organizations must improve websites or improve the knowledge level of judicial officers so that they can promptly respond, guide and

90 Nguyễn Nam Hưng (2022), Một số kiến nghị về công tác áp dụng pháp luật đối với các vụ án tranh chấp Hôn nhân gia đình, https://vkscapcaohcm.gov.vn/tin-tuc/mot-so-kien-nghi-ve-cong-tac-ap-dung-phap-luat-doi-voi- cac-vu-an-tranh-chap-hon-nhan-gia-dinh-4558.html, accessed on 29/4/2022

82 introduce the type of property regime of spouses as agreed upon by all citizens Additional Q&A content on the legal provisions on the property regime of spouses on television or have an answer program on FM radio

Secondly, it is necessary to improve the quality of notarization Notarization is an important activity in the process of establishing the property regime of spouses according to the agreement Notarization in the period of establishment of the property regime of the spouses has the role of determining the legality in terms of the content and form of the agreement Specifically, the contents that need to be implemented are necessary to improve, foster and professional qualifications of notaries; strengthening the guidance and orientation of notaries when performing notarization must ensure that they fully grasp the wishes of customers related to their property issues It is necessary to thoroughly advise the notary to avoid orientation and advise customers to use the types of sample agreements on the property regime that have been prepared to ensure that the will and the terms are drawn up in accordance with the client's aspirations, family circumstances and economic conditions It is necessary to have mechanisms to support notarization to develop, strengthen inspection activities, closely monitor notarized practice organizations to ensure the quality of notarization of documents of agreement on property regime

Lawmakers should prioritize evaluating and releasing implementation guidelines for the law, promoting a consistent interpretation of key concepts and provisions governing the property regime established by spouses Organizing legal research seminars to examine the property regime of spouses in Vietnamese and international family law is crucial Such efforts facilitate the identification of best practices and lessons learned, enabling the improvement of Vietnam's marriage and family laws and addressing existing shortcomings.

3.3.2.1 Proposal to improve regulations on setting up an agreed property regime

For inadequacies presented in section 3.2.2.2.1, to ensure the establishment of a control mechanism in accordance with the selection of establishing the property regime

83 of spouses, improve the effectiveness of the State's management of the marital relations of couples, while ensuring transparency and publicity to protect the rights and interests of those who participate in civil transactions with spouses, the writer may request to propose some of the following contents

Firstly, Vietnamese law should add provisions on the notary, the person performing the endorsement must provide the couple with a certificate, which names and residences of the notary, full name, name, residence of the future couple, the date of signing of the agreement The spouse must be obliged to hand over this certificate to the civil status judicial officer where the couple registers their marriage to save it in the marriage register This solution can improve the effectiveness of state management of marriages of couples on the issue of property regime selection This also helps state agencies to grasp and statistics the number of couples who choose the property regime under the agreement to assess the effectiveness of the marriage, thereby assessing the effectiveness of the provisions of the law on the property regime of spouses under the agreement

Secondly, the law may re-stipulate that the form of the marriage registration certificate must have the additional content of noting the type of property regime of the couple For example, Property regime: "property regime as agreed/property regime as prescribed by law" This can cause couples before getting married, they will have to actively learn the contents related to the property regime of the couple Because if the form of marriage certificate is amended as above, this will be the content that requires couples to actively study the provisions of the law on the property regime of spouses to make a decision to choose the type of property regime that is most suitable for their economic conditions and family circumstances This petition also contributes indirectly to propaganda and dissemination to help raise awareness of couples who intend to marry about the property regime under the agreement

Additionally, this proposal enhances transparency by enabling third parties to access the couple's chosen property regime through the examination of the marriage certificate As a result, third parties can proactively inquire about the specific property regime, facilitating informed decisions in financial transactions and safeguarding their interests.

84 agreement of the couple on the property regime to thoroughly assess the risks before conducting transactions or business cooperation with the spouse

3.3.2.2 Proposal to improve regulations on amendments and supplements to the agreement on the property regime of husband and wife

In order to overcome the inadequacies of the provisions on amendments and supplements to the agreement on property regimes in Section 3.2.2.2,vietnam's marriage and family law should add provisions on conditions, grounds and principles for the exercise of the right to amend, supplement the agreement of the spouse

Firstly, Legislators can add conditions on when couples are entitled to change the content of the agreement Like France, the time may be two years after the property regime under the agreement was established The addition of this condition is necessary and reasonable, because it creates the necessary amount of time for spouses to realize the advantages and disadvantages of the contents of the agreement on the property regime that they have established This contributes to increasing the care of men and women in discussing and agreeing on the terms of the agreement on the property regime of spouses before the period of marriage The spouses desperately need some time to apply the contents of the agreement to assess the effectiveness of the agreement that the spouse has established, which also ensures that the spouses cannot constantly change the content of the agreement leading to the instability of the relationship (ownership) of the couple's property

Secondly, Legislators can also add provisions on the period of time to be amended, add to the agreement after the first amendment and thereafter for 1 year 91 The meaning of this regulation is to ensure that the husband and wife must be careful, carefully calculate factors such as the situation of the family, the economic conditions of the family after the first change of agreement before amending and supplementing the agreement again In addition, the one-year term is also to ensure that the spouses have the evaluation and comment on the advantages and disadvantages of the property regime

85 of the spouses after each amendment, avoiding the case of the spouses not carefully calculating but abusing the rights prescribed by law to change the content of the agreement continuously

Tiêu đề	The Property Regime Of Husband And Wife By Agreement Under The Current Vietnamese Marriage And Family Law – Theory, Law, Practice
Tác giả	Lê Đức Hưng
Người hướng dẫn	ThS. Trần Công Thịnh
Trường học	Vietnam National University Hanoi School of Law
Chuyên ngành	Law
Thể loại	graduation thesis
Năm xuất bản	2022
Thành phố	Hanoi

Định dạng
Số trang	100
Dung lượng	1,21 MB