Identifying assets gifted separately during marriage.

(Baonghean) - Mr. Tran Minh K (Vinh City) asks: He and his wife are no longer living together but have not yet completed the divorce procedures. Mr. K's mother intends to gift him a plot of land with an area of ​​200m2. Mr. K wants to register the land use rights as his sole owner..

Ask:Is this plot of land the private property of Mr. K? If so, what is the procedure for registering ownership?

Reply:Clause 1, Article 43 of the 2014 Law on Marriage and Family stipulates the separate property of husband and wife: The separate property of a husband and wife includes property that each person owned before marriage; property inherited separately or gifted separately during the marriage; property divided separately between husband and wife according to the provisions of Articles 38, 39 and 40 of the Law on Marriage and Family; property serving the essential needs of the husband and wife; and other property as prescribed by law that is the separate property of the husband and wife.

Accordingly, the land plot that Mr. K's mother claimed was a gift given to him specifically during the marriage, is therefore Mr. K's separate property, and he is the owner of the land. However, Clause 3, Article 33 of the Law on Marriage and Family stipulates regarding the common property of husband and wife: In cases where there is no basis to prove that the property in dispute between the husband and wife is the separate property of each party, that property shall be considered common property. Therefore, when carrying out the procedure for gifting the land use rights, Mr. K's mother must clearly confirm that this is a gift given specifically to Mr. K. This will also serve as grounds to prove that the land plot is Mr. K's separate property.

Regarding procedures, according to Point a, Clause 3, Article 167 of the 2013 Land Law: Contracts for the transfer, donation, mortgage, or capital contribution using land use rights, or land use rights and assets attached to the land, must be notarized or certified, except in the case of real estate business. Therefore, to donate land use rights, one must first go to a notary office in the province or city where the land is located, or to the People's Committee of the commune to have the donation contract notarized/certified. After obtaining the notarized/certified land use rights donation contract, proceed with the registration of ownership transfer at the land use rights registration office. The required documents include: the land use rights donation contract; the land use rights certificate; and other documents such as identity cards and household registration books of both parties.

Trong Hai & Associates Law Office