DOES THE COMMON PROPERTY AGREEMENT OF THE SPOUSE DURING THE MARRIAGE PERIOD NEED TO BE NOTARIZED?

According to Article 38 of the Law on Marriage and Family 2014 stipulating properties division during the marriage period as follow:

1. During the marriage period, except the case prescribed in Article 42 of this Law, the spouse has the right to reach agreement on the division of part or whole of common property. If they fail to reach an agreement, they have the right to request a court to settle it.

2. An agreement on common property division shall be made in writing. This agreement shall be notarized at the request of the spouse or as prescribed by law.

3. At the request of a spouse, a court shall settle the common property division according to Article 59 of this Law.

Thus, during the marriage period, the spouse has the right to reach an agreement to the property division, and this division must be made in writing and may be notarized under the spouse’s request or the law. Although the law is not mandatory in all cases, the common property division agreement during the marriage period should be notarized to ensure value, binding effect and to avoid potential legal argument later. For the procedure of notarization, the following steps should be taken after the common property agreement has been completed by the spouses:

Step 1: Spouses prepare documents and directly submit them to Notary Office

Documents may include:

- Notarization request form (Notary offices have samples available);

- Copies of identity documents: Identity cards/Identification/Passports of the parties involved in the transaction;

- A copy of ownership or use rights certificate, or a copy of a replacement document for the property must to the registration of ownership or use rights;

- Copies of some other documents:

+ Marriage certificate;

+ Household book

- Draft the agreement of the common property division during the marriage period (in case the document is prepared by the notarization requester)

Step 2: Receive and check the document

- In case the application for notarization is complete and in accordance with the law, it shall be accepted and recorded in the notarization book;

- In case the document for notarization is incomplete: The notary shall write instructions and additional requirements;

- In case the document does not have enough grounds for settlement: The notary shall clearly explain the reason and refuse to accept the document.

Step 3: Draft and sign documents

- The document has been prepared by the notarization requester: The notary checks the draft document, if the draft contains provisions that violate the law, violate social ethics, etc., the notary must indicate to the requester Notarized to correct.

If the notarization requester fails to correct it, the notary has the right to refuse to notarize;

- In case the document is prepared by the notary at the request of the notarization requester:

+ The notarization requester reads the draft document or the notary public reads it to the notarization requester.

The notary public considers and implements the amendments and supplements when notarization requesters have these requirements.

+ In case the notarization requester agrees to all contents stated in the draft document, the notary shall guide the notarization requester to sign each page of the document.

Step 4: Sign the certification

The notary requires the notarization requester to present the originals of the documents as prescribed for comparison before writing the testimonials, sign each page of the document and transfer to the fees collection department of the notarial practice organization.

Step 5: Pay the notarization fees and get the result.

ADK & Co Vietnam Lawyers