Precedent No. 03/2016/AL on the Divorce Case in Vietnam

Precedent No. 03/2016/AL, adopted by the Judicial Council of the Supreme People’s Court on April 6, 2016, and promulgated pursuant to Decision No. 220/QD-CA dated April 6, 2016, issued by the Chief Justice of the Supreme People’s Court.

1. Definition of a Precedent

A precedent refers to the legal reasoning and rulings contained in a legally effective judgment or decision of a court regarding a specific case, selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as a precedent for courts to study and apply in adjudication. (Article 1, Resolution No. 04/2019/NQ-HDTP)

A precedent must meet the following criteria:

• It clarifies legal provisions subject to differing interpretations, provides analysis and explanation of legal issues and events, and indicates principles, guidelines for adjudication, or applicable legal norms in a specific case, or reflects fairness in matters not specifically regulated by law;
• It is normative;
• It provides guidance for the uniform application of law in adjudication.

2. Precedent No. 03/2016/AL on the Divorce Case in Vietnam

2.1. Source of the Precedent

Cassation Decision No. 208/2013/DS-GDT dated May 3, 2013, issued by the Civil Court of the Supreme People’s Court regarding the “Divorce” case in Hanoi between the plaintiff, Ms. Do Thi Hong, and the defendant, Mr. Pham Gia Nam; with Mr. Pham Gia Phac, Ms. Phung Thi Tai, Mr. Pham Gia On, Ms. Pham Thi Lu, Mr. Bui Van Dap, and Ms. Do Thi Ngoc Ha as persons with related rights and obligations.

2.2. Summary of Precedent No. 03/2016/AL

In cases where parents have given their married child and their spouse a plot of land, and the couple has constructed a solid house on that land for residence, with no objections from the parents or other family members during the construction; and the couple has used the house and land continuously, openly, and stably, and has registered the land, obtaining a land use rights certificate, it must be determined that the couple was gifted the land use rights.

Relevant legal provisions:

• Article 14 of the Marriage and Family Law of Vietnam 1986;
• Article 242 of the Civil Code of Vietnam 1995;
• Clause 2, Article 176 of the Civil Code of Vietnam 1995.

Keywords of the precedent:

“Divorce”; “Common property of spouses”; “Gift of property”; “Basis for establishing ownership”; “Establishment of ownership by agreement.”

CASE DETAILS

Ms. Do Thi Hong and Mr. Pham Gia Nam were married in 1992, registered at the People’s Committee of Van Tao Commune, Thuong Tin District, Hanoi City. After living together for some time, conflicts arose, and the couple separated in September 2008. On April 18, 2009, Ms. Hong filed for divorce from Mr. Nam, and Mr. Nam agreed.

Regarding common children: The couple has two children, Pham Gia Khang, born in 1992, and Pham Huong Giang, born in 2000. Both Ms. Hong and Mr. Nam wished to have custody of both children and did not require the other to contribute to child support. Khang expressed a desire to live with Mr. Nam, while Giang wished to live with Ms. Hong.

Regarding property: During their marriage, the couple built a two-story house in 2002 (with an additional attic added in 2005 for heat insulation) on an 80 m² plot of land in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District. The couple agreed that the house was their common property. However, they could not agree on the land.

According to Ms. Hong: The land belonged to the family of Mr. Pham Gia Phac (Mr. Nam’s father), allocated as part of a population dispersal program in 1992. Subsequently, Mr. Phac’s family held a meeting and declared that the land was given to Ms. Hong and Mr. Nam, without formal documentation. In 2001, Mr. Phac informed them, and Mr. Nam completed the procedures to obtain a land use rights certificate in the name of Mr. Pham Gia Nam’s household. Thus, she considered the land as the couple’s common property.

Ms. Hong requested to use the house and land and to pay Mr. Nam half of the land and property’s value, as determined by the valuation council.

According to Mr. Nam: The land was allocated to his parents in 1992 as part of the population dispersal program, and his parents only allowed the couple to live on it temporarily, not gifting it, as his family still had many siblings. In 2001, he independently registered the land without his family’s knowledge. His position was to return the land to Mr. Phac.

According to Mr. Phac and Ms. Tai (Mr. Nam’s parents): The land was allocated to Mr. Phac by the People’s Committee of Van Tao Commune in 1992, and he built a single-story house on it. In 1993, they allowed Mr. Nam and Ms. Hong to live and work there but did not gift the land, as Ms. Tai had been paralyzed for 15 years, and Mr. Phac and Mr. On (Mr. Nam’s younger brother) had to care for her. Their wish was to reserve the land for Mr. On, who had no place to live. At the time of the land allocation, their household consisted of four members: Mr. Phac, Ms. Tai, Ms. Lu, and Mr. On (as Mr. Nam had left the locality). They only learned that Mr. Nam had independently transferred the land title in 2001 when Ms. Hong filed for divorce. They demanded that Mr. Nam and Ms. Hong return the land to them.

Additionally, during the case proceedings, Ms. Hong stated that Mr. Nam was allocated a 125 m² plot of land by the Army Officer School I in Thach That District. Initially, she requested to divide this land but later withdrew the request.

Regarding debts: According to Ms. Hong, the couple borrowed 7.5 taels of 9999 gold from Ms. Hoang Thi Chu (her mother), 1 tael of 9999 gold from Ms. Do Thi Ngoc Ha (her sister), and 150,000,000 VND from Mr. Bui Van Dap at an interest rate of 1.25% per month, all without documentation. She demanded that Mr. Nam share responsibility for repaying these debts.

According to Mr. Nam, the couple only owed Ms. Chu 7.5 taels of gold, of which he had repaid 13,875,000 VND (equivalent to 3.75 taels). He was unaware of the other loans and did not agree to repay them as requested by Ms. Hong.

On November 3, 2010, the valuation council appraised the property as follows:

Land: 80 m² x 22,000,000 VND/m² = 1,760,000,000 VND.

House: 475,865,000 VND. Total property value: 2,235,865,000 VND.

At First-Instance Marriage and Family Judgment No. 03/2011/HNGD-ST dated May 17, 2011, the Thuong Tin District People’s Court, Hanoi City, decided:

1. Regarding the marital relationship: Ms. Do Thi Hong was granted a divorce from Mr. Pham Gia Nam.
2. Regarding common children: Ms. Do Thi Hong was entrusted with the custody of Pham Huong Giang, born August 14, 2000, until she reaches adulthood. Mr. Nam’s obligation to contribute to child support was temporarily suspended until Ms. Hong makes a request. Mr. Nam has the right to visit the child, and no one may obstruct this.
3. Regarding common property and contributions: The two-story house with an attic and all structures on Plot No. 63, Map Sheet No. 5, Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi City, were recognized as the common property of Ms. Do Thi Hong and Mr. Pham Gia Nam, valued at 475,865,000 VND.
4. The land use rights to 80 m² of Plot No. 63, Map Sheet No. 5, Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi City, were recognized as belonging to Mr. Pham Gia Phac’s household. Ms. Do Thi Hong and Mr. Pham Gia Nam were ordered to return the land use rights to 80 m² of Plot No. 63 to Mr. Pham Gia Phac’s household. Mr. Pham Gia Phac’s household was granted ownership of all property on the land, including the two-story house and structures. Mr. Pham Gia Phac was ordered to pay Ms. Do Thi Hong and Mr. Pham Gia Nam 237,932,500 VND each.
5. The Thuong Tin District People’s Committee was recommended to revoke Land Use Rights Certificate No. U060645, issued on December 21, 2001, in the name of Mr. Pham Gia Nam’s household, to facilitate reissuance to Mr. Pham Gia Phac upon his request.
6. Mr. Pham Gia Nam’s voluntary agreement to support Ms. Do Thi Hong with 800,000,000 VND was acknowledged.
7. Ms. Do Thi Hong was ordered to repay Mr. Bui Van Dap 179,820,000 VND.
8. Other claims by Ms. Do Thi Hong were dismissed.

Additionally, the first-instance court ruled on court fees and the right to appeal.

On May 19, 2011, Ms. Hong appealed the entire first-instance judgment.

On May 24, 2011, Mr. Nam appealed, objecting to supporting Ms. Hong with 800,000,000 VND for establishing a new residence. However, at the appellate hearing, he withdrew this appeal.

At Appellate Marriage and Family Judgment No. 105/2011/LH-PT dated August 30, 2011, and September 6, 2011, the Hanoi City People’s Court decided:

To uphold First-Instance Marriage and Family Judgment No. 03/2011/HNGD-ST dated May 17, 2011, of the Thuong Tin District People’s Court, Hanoi City (as outlined above).

Additionally, the appellate court ruled on court fees.

Following the appellate trial, Ms. Hong and Ms. Hoang Thi Chu submitted a request for cassation review of the appellate judgment.

In Protest Decision No. 05/2013/KN-HNGD-LD dated January 3, 2013, the Chief Justice of the Supreme People’s Court protested Appellate Marriage and Family Judgment No. 105/2011/LH-PT dated August 30, 2011, and September 6, 2011, of the Hanoi City People’s Court. The Chief Justice proposed that the Civil Court of the Supreme People’s Court conduct a cassation review to annul the appellate judgment and First-Instance Marriage and Family Judgment No. 03/2011/HNGD-ST dated May 17, 2011, of the Thuong Tin District People’s Court, Hanoi City, regarding the property relationship; and to transfer the case file to the Thuong Tin District People’s Court, Hanoi City, for re-adjudication at first instance in accordance with the law.

At the cassation hearing, the representative of the Supreme People’s Procuracy stated that, regarding the disputed land, at the time of the population dispersal land allocation to Mr. Phac’s family, Mr. Nam was not included, and there was no basis to conclude that the parents had gifted the land to Mr. Nam and his wife, so the land remained the property of Mr. Phac’s family. The determination by both courts that the land belonged to Mr. Nam’s parents was well-founded. There was an error regarding Ms. Chu’s debt. Therefore, they proposed that the judicial council reject the Chief Justice’s protest.

The Cassation Judicial Council of the Civil Court of the Supreme People’s Court determined:

Regarding the marital relationship and common children, the courts at both levels resolved these matters, and the parties raised no objections.

Regarding the property relationship: The disputed property is an 80 m² plot of land in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi City, registered in the name of Mr. Pham Gia Nam’s household.

The case file indicates that the land was allocated to Mr. Pham Gia Phac by the People’s Committee of Van Tao Commune, Thuong Tin District, in 1992 as part of the population dispersal program. According to the land handover record from the commune People’s Committee to Mr. Phac, Ms. Hong was already married to Mr. Nam at the time of the handover. However, according to verification by the first-instance court in Van Tao Commune, Thuong Tin, regarding the land allocation process, Van Tao Commune had a policy to allocate population dispersal land since 1991. Although the household registration for the allocation included only four members—Mr. Phac, Ms. Tai, Ms. Lu, and Mr. On (as Mr. Nam was serving in the military and had not returned to the locality)—the allocation was intended for large households, including Mr. Phac, his wife, and their children, so Mr. Nam was also an eligible recipient. After receiving the land, Mr. Phac’s family built a single-story house. In 1993, Mr. Phac’s family allowed Mr. Nam and Ms. Hong to live separately on the land, and they have continuously managed and used it since then.

Ms. Hong claimed that Mr. Phac’s family declared the land was given to her and Mr. Nam, while Mr. Phac and Mr. Nam asserted that the family had not gifted it.

It is noted: According to verification at the People’s Committee of Van Tao Commune, in 2001, the commune organized for households in Van Tao to register and declare for land use rights certificate issuance, with declarations made at the hamlet office (Record 103). All households in the commune were informed of this policy. Mr. Phac, the landholder, did not register. Mr. Nam, residing on the land, registered and completed the procedures for the certificate. On December 21, 2001, Mr. Nam was issued Land Use Rights Certificate No. U060645 in the name of Mr. Pham Gia Nam’s household. The couple built a solid two-story house in 2002 and added an attic in 2005. Mr. Phac and Mr. Nam’s siblings were aware of the couple’s construction but raised no objections. Thus, from the issuance of the certificate in 2001 until the divorce proceedings of Mr. Nam and Ms. Hong in 2009, no one in Mr. Phac’s family objected to the land allocation or construction. This demonstrates the intent of Mr. Phac’s family to gift the land to Mr. Nam and Ms. Hong. Therefore, Mr. Phac and Mr. Nam’s claim that Mr. Nam independently registered the land without Mr. Phac’s knowledge lacks basis. There is sufficient evidence to support Ms. Hong’s claim that Mr. Phac’s family gifted the land to the couple.

Consequently, the determination by both courts that Mr. Nam registered the land without Mr. Phac’s knowledge and that Ms. Hong’s claim of the family gifting the land lacked evidence, leading to the conclusion that the 80 m² plot in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi City, belonged to Mr. Pham Gia Phac’s household, and the order for Mr. Nam and Ms. Hong to return the land to Mr. Phac’s family, was incorrect. It is necessary to determine that the disputed land is the common property of Mr. Nam and Ms. Hong, and when dividing it, Mr. Nam’s greater contribution should be considered, with division based on each party’s contribution and housing needs to allocate the property in kind to ensure the parties’ rights.

Regarding Ms. Hoang Thi Chu’s (Ms. Hong’s mother) complaint: On May 7, 2011 (before the first-instance trial), Ms. Chu submitted a statement to the Thuong Tin District People’s Court, stating: “As of today, May 7, 2011, I have received the money repaid by my children. I no longer request the court to resolve this.” The first-instance court’s decision to confiscate Ms. Chu’s advance court fee (200,000 VND) for the State treasury without terminating the resolution of her debt claim was contrary to Point d, Clause 1, Article 192 of the Civil Procedure Code of Vietnam 2004. However, after the first-instance trial, Ms. Chu did not appeal, and the Procuracy did not protest, so the appellate judicial council, pursuant to Article 263 of the Civil Procedure Code of Vietnam 2004, only reviewed the parts of the first-instance judgment or decision that were appealed, protested, or related to the appealed or protested content. Thus, the Chief Justice’s protest regarding this issue was unnecessary.

Therefore, the Cassation Judicial Council of the Civil Court of the Supreme People’s Court finds the Chief Justice’s protest regarding the disputed property of Mr. Nam and Ms. Hong (the 80 m² plot in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi) to be well-founded and acceptable.

For the foregoing reasons, pursuant to Clause 2, Article 291; Clause 3, Article 297, and Article 299 of the Civil Procedure Code of Vietnam 2004;

DECISION

To annul Appellate Marriage and Family Judgment No. 105/2011/LH-PT dated August 30, 2011, and September 6, 2011, of the Hanoi City People’s Court and First-Instance Marriage and Family Judgment No. 03/2011/HNGD-ST dated May 17, 2011, of the Thuong Tin District People’s Court, Hanoi City, regarding the property relationship in the “Divorce” case between the plaintiff, Ms. Do Thi Hong, and the defendant, Mr. Pham Gia Nam;

To transfer the case file to the Thuong Tin District People’s Court, Hanoi City, for re-adjudication at first instance in accordance with the law.

CONTENT OF THE PRECEDENT

According to verification at the People’s Committee of Van Tao Commune, in 2001, the commune organized for households in Van Tao to register and declare for land use rights certificate issuance, with declarations made at the hamlet office (Record 103). All households in the commune were informed of this policy. Mr. Phac, the landholder, did not register. Mr. Nam, residing on the land, registered and completed the procedures for the certificate. On December 21, 2001, Mr. Nam was issued Land Use Rights Certificate No. U060645 in the name of Mr. Pham Gia Nam’s household. The couple built a solid two-story house in 2002 and added an attic in 2005. Mr. Phac and Mr. Nam’s siblings were aware of the couple’s construction but raised no objections. Thus, from the issuance of the certificate in 2001 until the divorce proceedings of Mr. Nam and Ms. Hong in 2009, no one in Mr. Phac’s family objected to the land allocation or construction. This demonstrates the intent of Mr. Phac’s family to gift the land to Mr. Nam and Ms. Hong. Therefore, Mr. Phac and Mr. Nam’s claim that Mr. Nam independently registered the land without Mr. Phac’s knowledge lacks basis. There is sufficient evidence to support Ms. Hong’s claim that Mr. Phac’s family gifted the land to the couple.

Consequently, the determination by both courts that Mr. Nam registered the land without Mr. Phac’s knowledge and that Ms. Hong’s claim of the family gifting the land lacked evidence, leading to the conclusion that the 80 m² plot in Van Hoa Hamlet, Van Tao Commune, Thuong Tin District, Hanoi City, belonged to Mr. Pham Gia Phac’s household, and the order for Mr. Nam and Ms. Hong to return the land to Mr. Phac’s family, was incorrect. It is necessary to determine that the disputed land is the common property of Mr. Nam and Ms. Hong, and when dividing it, Mr. Nam’s greater contribution should be considered, with division based on each party’s contribution and housing needs to allocate the property in kind to ensure the parties’ rights.