GUIDANCE ON DIVIDING LAND USE RIGHTS IN DIVORCE

Divorce not only terminates the marital relationship but also entails the division of joint property, among which land use rights are highly valuable and legally complex. Land use rights represent both an asset and a living/working space with long-term family ties. Therefore, dividing land use rights upon divorce requires careful consideration based on legal provisions, practical circumstances, and human factors. This article provides detailed guidance on the regulations and procedures for dividing land use rights in divorce according to current Vietnamese law.

1. Legal basis

The division of land use rights in divorce is governed by the Vietnamese legal system, which includes multiple legal documents such as:

• Law on Marriage and Family 2014 (Law No. 52/2014/QH13): Provides regulations on the rights and obligations of spouses and the principles for dividing joint property upon divorce.
• Land Law 2013 (Law No. 45/2013/QH13): Regulates all activities related to land management and use, the rights and obligations of land users, and the procedures for registering land use rights.
• Civil Code 2015: Provides regulations on ownership rights, joint property, contracts, and civil transactions related to land.
• Resolution No. 01/2017/NQ-HĐTP of the Council of Judges of the Supreme People’s Court: Provides guidance on applying the law to resolve disputes over joint property of spouses in divorce.
• Implementing documents of the Land Law and the Law on Marriage and Family related to land issues in marriage and divorce.

The coordinated application of these regulations ensures strict legal compliance and practical relevance in handling land assets during divorce.

2. Determining whether land use rights are joint or separate property

To divide land use rights, the first step is to correctly determine the legal nature of the land, based on the following principles:

• Land use rights are separate property of a spouse if:
  • They were acquired before marriage (with a land use certificate in one spouse’s name prior to the marriage).
  • They were inherited individually or gifted to one spouse during the marriage (supported by specific evidence such as a gift certificate or will).
  • They were purchased using separate property (e.g., funds owned by that spouse before marriage).
  • There is a written agreement specifying it as separate property.
• Land use rights are joint property of the spouses if:
  • They were acquired during the marriage using joint funds or assets.
  • They are in one spouse’s name but purchased from joint funds or used jointly.
  • They cannot be proven to be separate property.

Accurately determining the nature of the property is the most important legal basis for division, helping to prevent prolonged disputes or incorrect handling.

3. Principles for dividing land use rights in divorce

According to Article 59 of the Law on Marriage and Family 2014 and guidance in Resolution 01/2017/NQ-HĐTP, the division of joint property, including land use rights, must adhere to the following principles:

• Priority on agreement: Parties should prioritize negotiating the division of property and allocation of land use rights in accordance with their circumstances and actual needs. The Court will respect and recognize such agreements if they do not violate the law.
• Equal division in the absence of agreement: If spouses cannot reach an agreement, the Court divides property fairly, usually equally, while considering other objective factors.
• Consideration of each party’s contributions: The Court evaluates each spouse’s financial contribution, labor, and management of property to assign an appropriate share.
• Protecting the interests of vulnerable parties: such as the spouse caring for minor children or with lower income, to ensure they have the means to maintain a stable life after divorce.
• Avoiding harm to the other party: For example, property should not be divided in a way that leaves the other spouse without essential housing or means for daily life or production.

4. Methods for dividing residential land use rights

Residential land typically has high value and clear legal status. Therefore, the division of residential land use rights upon divorce is carried out based on the following regulations and practices:

• Subdivision and issuance of new certificates: If the land area meets the conditions for subdivision under land law, the Court will request the competent authority to subdivide the land and issue separate land use right certificates for each party according to their allocated share.
• Allocating land to one party and compensating the other: If subdivision is not possible due to small area or planning restrictions, the Court may allocate the entire land use right to one party, while the other party receives monetary compensation corresponding to their share.
• Valuation of land use rights and attached assets: Division is also based on the value of the land, houses, and associated structures to ensure fair allocation and avoid disadvantaging either party.
• Consideration of actual needs: The Court may consider which party has a more urgent need for housing (e.g., with minor children or elderly dependents) and prioritize allocating the land accordingly.
• Agreed transfer of land use rights: If the parties voluntarily agree on the division and transfer of land use rights, they must execute a land use rights transfer contract and complete the procedures for registering land use changes.

5. Division of agricultural land and other types of land

Agricultural land and other non-agricultural lands have distinct characteristics; therefore, the division of land use rights must be based on specific legal provisions and actual use:

• Annual crops and aquaculture land:
  • If both parties have needs and are capable of using the land, it will be divided according to area or corresponding value.
  • If only one party uses the land, that party will be allocated the land but must compensate the other party for their share of the value.
  • The division must comply with the legal limits on agricultural land use to avoid exceeding the allowed quotas.
• Perennial crops and production forests:
  • Due to the long-term investment nature and high improvement costs, division requires careful consideration of each party’s contribution and capacity to utilize the land.
• Forestry land and specialized-use land: Division may be complex and must take into account land planning and designated land use functions under the Land Law.

Cases where jointly-owned land cannot be subdivided or poses difficulties: The Court may allocate land use rights to one party and require monetary compensation to the other.

6. Cases where separate land use rights are combined with joint property

There are instances where land use rights are initially separate property of one spouse but later become part of the couple’s joint property—for example, transferring separate land use rights to be jointly owned by both spouses or pooling funds to purchase land together.

In such situations:

• The Court will determine the portion of the land use rights’ value that constitutes separate property and the portion that forms joint property for division.
• The spouse with separate property is entitled to their corresponding portion, while the remaining portion is divided according to general principles.
• Determining the ratio of separate and joint property must be based on supporting documents, contracts, and the specific origin of the property.

7. Procedures for resolving and registering changes in land use rights after divorce

After the Court issues a divorce judgment or decision including the division of property, the parties must complete the legal procedures to register changes in land use rights:

• Preparing the registration dossier:
  • Application for registration of changes in land use rights (using the prescribed form).
  • Divorce judgment or decision with legal effect.
  • Confirmed agreement on the division of land use rights or documents proving joint property.
  • Original land use right certificate.
  • Identification documents of the parties.
• Submit the dossier to the Land Registration Office or the corresponding branch where the land is located.
• Processing the dossier: The registration authority will review the documents, conduct surveying and verification, update changes in the cadastral records, and issue new certificates in accordance with regulations.
• Processing time: Generally from 15 to 30 working days, depending on the locality.

Registering changes is an essential legal step to ensure that the rights and obligations of the parties are recognized and protected by law.

8. Some notes:

• Prioritize negotiation and agreement: Since dividing land use rights is often complex, proactive negotiation between the parties can prevent disputes, save time and costs, and avoid prolonged conflicts that would otherwise require court intervention.
• Provide clear evidence of land use rights origin: To prevent disputes and ensure proper division, parties should retain and submit all relevant land-related documents.
• Assess contributions objectively: Financial contributions, labor, management, and land improvement efforts are all considered when dividing joint property.
• Consider the interests of children and disadvantaged parties: The Court usually takes into account these factors to allocate land use rights appropriately, especially when there are young children or elderly individuals involved.
• Land registration procedures must be carried out accurately and timely: After the division, registering changes in land use rights is essential to prevent future disputes.

9. Conclusion

Dividing land use rights upon divorce requires legal knowledge, careful assessment and decision-making, as well as effective coordination between the parties. Vietnamese law provides a clear legal framework, allowing the parties to negotiate independently or seek a fair and reasonable resolution through the Court. To ensure their rights, the parties should prepare complete documentation, maintain a cooperative attitude during negotiations, and proactively complete the land registration procedures in accordance with regulations. In complex cases, legal advice or representation by a lawyer may be sought to protect rights and minimize risks.

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