Legal Framework on Separate Property Acquired Before Marriage

A house purchased before marriage, but subsequently used as a common residence and renovated or upgraded by both spouses after marriage, does it remain the separate property of the original purchaser upon divorce? This is a recurring issue in judicial practice. The Law on Marriage and Family 2014 provides an essential legal framework for determining pre-marital property, a legally complex yet highly practical matter.

1. Scope of Regulation and Establishment of a Flexible Property Regime

Pursuant to Articles 28, 47, and 48 of the Law on Marriage and Family 2014 (“LOMF 2014”), the property regime between spouses includes:

• The statutory property regime;

• The agreed property regime – officially recognized for the first time under Vietnamese law.

These provisions allow spouses to proactively define the boundaries between separate and common property, including assets acquired prior to marriage registration. This contributes to greater transparency, stability in marital property relations, and protection of individual property rights within marriage.

2. Clear Classification of Property and the First Legal Recognition of “Separate Property”

Articles 33 and 43 of the LOMF 2014 clearly distinguish between:

• Separate property of a spouse, including assets acquired before marriage; assets inherited or gifted separately; property serving essential personal needs; and property divided separately during the marriage;

• Common property of spouses, being assets formed during the marriage or assets that cannot be proven as separate property.

These provisions affirm the independent ownership rights of each spouse over assets acquired prior to marriage, in line with the principle of personal ownership under current civil law.

3. Protection of Rights to Manage and Dispose of Separate Property

Article 44 of the LOMF 2014 provides that each spouse has the right to possess, use, and dispose of his or her separate property without requiring the consent of the other spouse—except where such disposition affects common interests or the interests of children.

Separate property is generally not used to fulfill joint financial obligations, unless otherwise agreed. This provision reinforces the legal basis for protecting pre-marital assets from financial risks arising during marriage.

4. Property Agreement Mechanism – Expanding Freedom of Contract

Under Article 47 of the LOMF 2014, prior to marriage, a man and a woman may:

• Agree on a marital property regime;

• Clearly determine which assets are separate and which are common;

• Execute such agreement in writing, duly notarized or authenticated to ensure legal validity.

This mechanism aligns with international legal practices and is particularly important for individuals with substantial assets, those engaged in business or investment activities, or those who have previously been married.

5. Dispute Resolution Mechanism and Burden of Proof

Pursuant to Clause 3, Article 33 of the LOMF 2014, the party claiming an asset as separate property bears the burden of proof. If such proof cannot be provided, the asset shall be deemed common property of the spouses.

While this principle provides clear guidance for dispute resolution, it poses significant practical challenges, especially where assets are unregistered, lack documentation, or have been commingled through joint use during the marriage.

Conclusion

Determining whether pre-marital assets constitute separate property may appear straightforward, but in practice, such assets are easily “commingled” during married life. The Law on Marriage and Family 2014 represents a significant advancement by introducing flexible mechanisms to protect individual ownership rights, particularly through property agreements. Nevertheless, asset owners must be proactive in maintaining documentation, records, and clear distinctions to prevent future disputes. Most importantly, even assets acquired before marriage may be deemed common property if they are jointly used and cannot be proven as separate property.