Can the separate property the husband acquires before marriage be considered as the common property of husband and wife? Can the property the wife acquires in the marriage period be considered as her separate property? If possible, how can it be valid?

We will learn about new provisions in the law on family and marriage to answer the above questions, which is "the agreement on the matrimonial property regime" or "the prenuptial contract".

What is the prenuptial contract?

The Law on Marriage and Family 2014 introduces a new choice for the matrimonial property regime, which is "the agreement on the matrimonial property regime" or "prenuptial contract".

The Law on Marriage and Family 2014 does not provide a specific definition of the "prenuptial contract”, but it can be understood simply that the “prenuptial contract” is an agreement between husband and wife about the matrimonial property regime before and during the marriage period, and the contents of these agreements may be different from the law.

To make it easy understanding, let's take a look at the following examples:

• According to the Law on Family and Marriage, property acquired before marriage is separate property of a spouse. However, husband and wife can have an agreement that property acquired before marriage is their common property.
• According to the Law on Family and Marriage, property acquired during the marriage period is common property of husband and wife. If it is not their wish, husband and wife can have an agreement that property acquired during the marriage period is separate property of the spouse who acquires such property.

Thus, if husband and wife have an agreement on the marital property regime and this agreement is contrary to the provisions of law, this agreement will still prevail in order to divide the marital property in the future.

How can the prenuptial contract be valid?

For a prenuptial contract to be valid, the following elements must be fully met:

• It must be made before the marriage,
• It must be made in writing,
• It must be notarized or authenticated.

Therefore, if the prenuptial contract is a verbal agreement, or is made after the marriage, or is not notarized or authenticated, it will be void.

What can be agreed upon in the prenuptial contract?

The current law on marriage and family only allows husband and wife to agree on the matrimonial property regime in the "prenuptial contract", it does not yet have provisions that allow husband and wife to agree on other issues such as custody, divorce, support, etc.

Specifically, the basic contents that the law allows husband and wife to agree in a prenuptial contract are:

• Identify which property is common property, which property is separate property of husband and wife,
• Agree that there is no separate property, all properties acquired by husband and wife before marriage or during the marriage period are common properties,
• Agree that there is no common property of husband and wife, all properties acquired by husband or wife before the marriage and during the marriage period are separate properties of the spouse who acquires such properties,
• Principle of property division if the marriage ends,
• And other agreements.

Conclusion

Thus, we can answer the questions at the beginning of the article. Accordingly, the separate property the husband acquires before marriage can be considered as common property of husband and wife, the property the wife acquires in the marriage period can be considered as her separate property. To make these things valid, husband and wife must sign an agreement on the matrimonial property regime before their marriage and it must be notarized or authenticated.