Distinguishing between marital property and separate property in marriage

💡 Why is it important to understand marital property and separate property during a marriage?

Understanding whether an asset is marital or separate helps spouses:

Take initiative in managing and using each type of property
Prevent potential disputes in the event of a divorce
Protect their legitimate rights and those of their children

	🏠 Marital Property	🧳 Separate Property
Legal Basis	Article 33 of the 2014 Law on Marriage and Family, Articles 9 and 10 of Decree 126/2014/NĐ-CP	Article 43 of the 2014 Law on Marriage and Family, Article 11 of Decree 126/2014/NĐ-CP
When is it established?	Assets formed during the marriage or agreed upon by both spouses, except in specific cases	Assets owned before the marriage, inherited or gifted to one spouse only, or closely related to personal identity and essential needs
How to identify them	Assets created by either spouse, income from work, production, business, profits, and returns from separate property, or other legal income during marriage Joint inheritance or gifts, or assets agreed to be joint Land use rights acquired after marriage (except inherited/gifted separately or acquired using separate property) Assets in dispute that cannot be proven to be separate are presumed to be marital	Assets owned before marriage Assets individually inherited or gifted during marriage Assets divided under Articles 38, 39, 40 of the Law on Marriage and Family 2014 Assets for essential needs or individually owned under the law
Other legal income	Bonuses, lottery winnings, allowances (except as regulated in Clause 3, Article 11 of Decree 126) Ownerless, sunken, or forgotten assets acquired under legal ownership Other lawful sources of income	Intellectual property rights Assets established through judgments or decisions of a court/competent authority Allowances or benefits for contributors to the revolution Personal property rights tied to an individual
Profits and Returns	Profits: Natural products from separate property Returns: Profits from exploiting separate property

Rights and obligations of spouses over each type of property during marriage

Spouses' Rights Over Marital Property

Legal basis: Article 35 of the Law on Marriage and Family 2014; Article 13 of Decree 126/2014/NĐ-CP

According to current law, spouses have equal rights in possessing, using, and disposing of marital property. Specifically:

Possession: Spouses may directly manage and protect marital property or authorize the other spouse or another person if neither can do so themselves.
Use: Spouses may utilize marital property and enjoy profits from it. Using marital property for investment or business requires mutual consent. If authorized, the agent has full rights of use, and resulting benefits remain marital property.
Disposition: Disposing of valuable marital property (e.g., real estate, registered property, or primary family income) requires mutual written consent. If authorized, the agent may dispose of the property without further consent. Both spouses are jointly responsible for obligations arising from such disposition if it meets essential family needs.

Spouses' Rights Over Separate Property

Legal basis: Articles 44 and 46 of the Law on Marriage and Family 2014

Separate property of each spouse is recognized and protected by law. Specifically:

Possession: Each spouse may manage their separate property. If unable to do so, they may authorize another person. If not, the other spouse may manage it.
Use: Each spouse may use their separate property for personal purposes or agree to use it for essential family needs. If the marital property is insufficient, the spouse with separate assets must contribute to family life and the children's needs.
Disposition: Each spouse has the right to dispose of their separate property. However, if the separate property is the sole source of family income, both spouses must agree. Spouses may also agree to convert separate property into marital property.

Spouses’ Obligations Regarding Marital Property

By law, spouses are jointly responsible for obligations related to marital property. Specifically:

Transactions jointly entered into (e.g., borrowing, leasing, selling property)
Obligations for damages as prescribed by law
Obligations arising from meeting essential family needs
Obligations related to the use or disposal of marital property
Obligations resulting from using separate property to develop marital property or generate family income
Compensation for damages caused by underage children under the Civil Code
Other obligations under the law

Spouses’ Obligations Regarding Separate Property

Each spouse is individually responsible for obligations involving their separate property, including:

Obligations established before marriage
Obligations arising from the use or disposal of separate property (unless otherwise regulated)
Obligations from personal transactions not aimed at meeting family needs
Obligations resulting from their own legal violations
Separate obligations to be fulfilled using separate property

👉 If you need help identifying marital vs. separate property during your marriage or want to draft property agreements, contact our legal team for detailed consultation.