During marriage, not every asset the spouses hold is common property. The law recognizes separate property of each spouse — but to have it recognized as separate in a dispute, the claiming party must prove it. Unproven assets are treated as common property.
This article analyzes how to identify and prove separate property under Articles 43 and 44 of the Law on Marriage and Family 2014.
1. What counts as separate property?
Article 43 of the Law on Marriage and Family 2014 (No. 52/2014/QH13) lists separate property of spouses as:
- Property owned before marriage: houses, land, money, shares, etc. acquired before marriage registration;
- Property separately inherited or separately gifted during marriage: e.g. parents gifting a land plot exclusively to their daughter after she marries;
- Property separately divided under the rules on dividing common property during marriage (Articles 38–40);
- Property serving the essential needs of each spouse, and other property classified by law as separately owned.
In addition, property formed from separate property is also separate property — e.g. using pre-marital savings to buy a house during marriage: the house remains separate if the money trail is proven.
2. Spouses’ rights over separate property
Article 44 provides: each spouse has the right to possess, use and dispose of their separate property without the other’s consent, and may merge it into common property or not, at their choice.
Fruits and profits arising from separate property during marriage are common property under Clause 1, Article 33 of the 2014 Law on Marriage and Family — not separate property. The “family’s sole source of livelihood” condition in Clause 4, Article 44 only limits the right to dispose of separate property (disposition requires the spouses’ agreement when the fruits or profits are the family’s sole livelihood) — it is not a classification test.
3. How to prove separate property in practice
This is the most important part. Depending on the asset type, proof includes:
- Pre-marital property: sale/transfer documents dated before marriage registration; bank statements, payment vouchers;
- Separate gifts: a notarized gift contract expressly stating the gift is “separate” to one person; avoid vague gift contracts made out to both spouses;
- Separate inheritance: estate declaration/division documents showing the separate inherited share;
- Agreement identifying separate property: a notarized/certified agreement between the spouses — the strongest evidence in disputes.
4. Common trap: whose name is on the certificate?
A classic case: gifted a land plot separately before marriage, but the certificate is only obtained after the wedding. If the certificate names both spouses, the law presumes common property (Article 34) — unless the spouses agree otherwise. To keep it separate, obtain the certificate in your sole name and prove the pre-marital separate-gift origin.
Conversely, an asset titled in one spouse’s name alone is not necessarily separate — if its separate origin cannot be proven and a dispute arises, it is treated as common property under Clause 3 of Article 33.
5. Frequently asked questions
Q: Is salary earned during marriage separate property?
A: No. Income from labour during marriage is common property, unless the spouses agree otherwise.
Q: Can spouses agree to turn common property into separate property?
A: Yes — through an agreement dividing common property during marriage (Articles 38–40) or an agreement identifying separate property, made in writing with notarization/certification.
Q: Is separate property divided on divorce?
A: No. Separate property belongs to its owner, except where it has been merged into common property.
Need a tightly drafted separate-property agreement? Contact us for advice.
This article was prepared by the FLAW AI Legal Council. Content is pending QA Council review before submission for approval; information is for reference only and does not replace legal advice for your specific case.
