Author: TNTP LAW

III. Basic content of the prenuptial agreement

• Terms on conditions, procedures, and principles of division upon termination of the prenuptial agreement
• This is also the content established based on the volition of the parties. The prenuptial agreement can terminate at any time when the husband and wife agree or the husband/wife dies or is declared dead by the Court, or the husband and wife divorce, or the prenuptial agreement is declared void.
• The fact that the parties agree on specific conditions, procedures, and principles for asset division upon termination of the agreement will limit disputes and also saves time and costs for the parties when dividing assets.

Terms on amendments and supplements to the prenuptial agreement

• The issue of amending and supplementing the content of the agreement is specified in Article 49 of the Law on Marriage and Family 2014, detailed guidance in Article 17 of Decree 126/2014/ND-CP. Accordingly, husband and wife can modify part or all of the content of the agreement, or change from the agreed property regime to the statutory property regime. The amendment and supplement to the content of the agreement must be made in writing, which is notarized or authenticated. The amended and supplemented agreement takes effect from the date on which it is notarized or authenticated.
• When amending and supplementing the content of the agreement, the husband and wife must still provide information related to the spouse’s property to the third party. If the husband or wife violates this obligation, the third party is considered to be in good faith and has their interests protected according to the provisions of the Civil Code.

Terms on legal consequences of terminating the agreed property regime

• In the first case, because one of the husband/ wife has died or is declared dead by the Court: Clause 2, Article 66 of the Law on Marriage and Family 2014 stipulates “When there is a request for division of the estate unless the couple has reached agreement on the property regime, community property of husband and wife shall be divided into two. The property portion of the spouse who is dead or declared to be dead by a court shall be divided in accordance with the inheritance law”. According to the above provisions, in case the husband and wife have a prenuptial agreement, the division of the estate will apply according to the established agreement. Consequently, the parties need to stipulate the division of property upon termination of the prenuptial agreement.
• In the second case, due to divorce: In case the prenuptial agreement contains provisions on property division after divorce and the prenuptial agreement is not invalid, these contents shall apply to divide the property of husband and wife upon divorce. In case the prenuptial agreement does not have provisions on property division after divorce or the prenuptial agreement is declared entirely invalid by the Court or the terms on property division after divorce is declared invalid by the Court, the regime as prescribed by law shall be applied to divide the property of husband and wife upon divorce. For matters that are not agreed upon by husband and wife, or that the agreement is unclear or partially invalid, Articles 59 and Articles 61 to 64 of the Law on Marriage and Family shall be applied for settlement.
• The third case, due to the invalid of the prenuptial agreement: Article 6 of the Joint Circular No. 01/2016/TTLT-TANDTC-VKSNDTC-BTP stipulates that: i) In case the prenuptial agreement is declared entirely invalid by the Court, the statutory property regime shall be applied; ii) In case the prenuptial agreement is declared partially invalid, the contents that are not invalidated shall still be applied; for the invalid content, the corresponding provisions on the statutory property regime shall be applied.

IV. Terms on the invalid prenuptial agreement

Cases about the invalid prenuptial agreement are specified in Article 50 of the Law on Marriage and Family 2014.

• The first case: “It fails to meet the conditions on the effect of transactions prescribed by the Civil Code and other relevant laws”. Accordingly, compared with Article 117 of the 2015 Civil Code, the valid conditions for a civil transaction include that the husband and wife must be completely voluntary when agreeing; the agreement is by the will of the parties, the parties are not deceived, coerced, threatened, confused; the purpose and content of the agreement do not violate the prohibition of the law and social morality.
• The second case: “It violates Article 29, 30, 31 or 32 of the Law on Marriage and Family”. Accordingly, the content of the pre-marital property agreement must not violate: General principles of the property regime between husband and wife; Rights and obligations of husband and wife in meeting the essential needs of the family; Transactions related to the house as the sole residence of the husband and wife; Transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets not required by law to be registered for ownership and use.
• The third case: “Its contents seriously infringe upon the rights to be supported and inherit and other lawful rights and interests of parents, children and other family members”. This regulation is intended to protect the legitimate rights and interests of other family members. Where an agreement is reached to evade the support obligation specified in Articles 110 to 115 of the Law on Marriage and Family or to deprive the heirs of the inheritance rights regardless of the content of the will under the provisions of the Civil Code or violates the lawful rights and interests of parents, children and other family members as provided for by the Marriage and Family Law and other relevant laws, this agreement shall be considered invalid.

Above is the post: “Some issues with the prenuptial agreement (Part 2)”. We hope this post was useful to you.

Best regards,

The agreed marital property regime allows husband and wife to freely dispose of each individual’s property while ensuring the common interests of the family. Depending on the customs, practices, and laws of each country, the agreement on the property pre-marriage regime of husband and wife is called by many different terms, but the most common is “The Prenuptial Agreement”. In recent years in Vietnam, this agreement has an increasing need for access. Therefore, within the scope of this article, we mention and analyze some issues about the prenups to improve its effectiveness.

I. The definition of the prenups

Currently, the Vietnamese legal system does not have specific provisions on the definition of a prenuptial agreement. The law on marriage and family has only provided several provisions, but not enough, on the right to choose to apply the property regime as agreed upon by the husband and wife (Clause 1, Article 28 of the Law on Marriage and Family 2014).

According to the opinion of some jurisprudence researchers, the prenups is a written agreement made before marriage about the property ownership relationship of husband and wife including the origin of establishing community and separate property and principles of property division of husband and wife.

II. Regulations on the basis for establishing and raising effect to the prenuptial agreement

According to Article 47 of the Law on Marriage and Family 2014, the conditions for husband and wife to choose and apply a prenuptial agreement include:

• Firstly, in terms of time, a prenuptial agreement must be made before marriage. This provision is also applied by many countries with an agreed property regime. The prenuptial agreement cannot be established after the time of marriage registration.
• Secondly, the prenuptial agreement takes effect from the date of marriage registration. In other words, marriage registration is a mandatory condition if the parties want to choose this mode. Cases of illegal marriage or marriage registration at an improper agency, in principle, will not be able to apply the prenups, even though a written agreement has been established in advance.
• Thirdly, the prenuptial agreement must be made in writing and notarized, and authenticated. The process and procedures for signing the prenuptial agreement are carried out by the Law on Notarization 2014 and regulations of competent state agencies.

III. Basic content of the prenuptial agreement

Article 48 of the Law on Marriage and Family 2014 stipulates the basic contents of a prenuptial agreement, including:

Terms on determining community property and separate property of husband and wife

• This content is important because determining the rights of husband and wife to each specific type of property is the basis for property division after the termination of the prenuptial agreemeninv. The determination of community property and separate property of husband and wife is guided in detail in Article 15 of Decree No. 126/2014/ND-CP detailing several articles and measures to implement the Law on Marriage and Family (“Decree No. 126/2014/ND-CP”). Specifically, husband and wife may agree on property determination according to one of the following contents:

a) Matrimonial property includes community property and separate property of husband and wife;

b) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is community property;

c) Husband and wife have no community property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;

d) Property is determined as otherwise agreed by husband and wife.

• Therefore, the parties can freely agree on any method of determining community property or separate property, as long as such agreement is not contrary to the provisions of law and customs. In case some issues have not been agreed upon by the spouses or are unclear, these issues will be applied similarly to the property regime according to law.

Terms on rights and obligations of husband and wife toward community property, separate property, and related transactions; property to meet the family’s essential needs

• For this clause, the parties can freely agree, however, the content of the agreement must be consistent with the provisions of law and ensure the fulfillment of obligations and responsibilities of the husband and wife.
• Husband and wife must ensure conditions to meet the family’s essential needs (Essential needs means ordinary needs for food, clothing, accommodation, learning, medical care, and other ordinary needs which are indispensable in the life of each person and family). If the prenuptial agreement violates this content, it may be declared invalid. Therefore, the parties need to agree on the property to ensure the essential needs of family members, especially in cases where the parties agree to only have separate property, no community property.
• When husband and wife agree on the determination of rights and obligations concerning property, property relations with related third parties must be based on and implemented by such agreement. When establishing and performing property transactions with a third party, husband and wife are obliged to provide this person with relevant property information; if the husband or wife violates this obligation, the third party is considered to be in good faith and has their interests protected according to the provisions of the Civil Code.

Above is the post: “Some issues with the prenuptial agreement (Part 1)”. We hope this post was useful to you.

Best regards,

Negotiation is a method of dispute settlement whereby the disputing parties will jointly contact, learn, settle, and make concessions to remove disagreements arising to eliminate disputes without the assistance or judgment of any third party. So, what advantages and disadvantages does this method have?  Let’s find out about TNTP through the article below.

I.The concept of Negotiation method for dispute resolution

Under Article 317 of the 2005 Commercial Law, negotiation between the parties is one of the forms of commercial dispute settlement, along with other forms such as mediation, arbitration, or court.

Accordingly, it can be understood that negotiation is one of the methods of resolving disputes through the fact that the disputing parties will contact and learn together., mediation, and concessions to resolve disagreements arising to eliminate disputes without the assistance or judgment of any which third-party period.  Among the methods of resolving trade disputes, negotiation is considered the most popular and effective method today.

II.Features of the negotiation method of dispute resolution

The method of negotiation for dispute resolution has the following characteristics:

• The disputing parties have known each other, have gone through a process of business and commercial cooperation, and have had binding legal relations. Before the dispute occurred, the parties may have had a negotiation process to reach an agreement. Disputes are possible events that the parties do not want, so it is beneficial to negotiate for the resumption of cooperation. for both
• In case the dispute arises from a contractual relationship, the agreement of the parties depends on the provisions of the contract and related laws. The agreement of the parties is mainly related to the contractual relationship the parties have established and arising The agreement reached by the parties must be by the provisions of the law, and must not violate the prohibitions of the law on the content settlement of that dispute.
• The disputing parties will agree on their own to seek solutions in the spirit of voluntariness, goodwill, and
• If an agreement is reached, the parties usually voluntarily enforce that agreement to resolve the dispute. If the negotiation fails or the negotiation is successful but the two parties do not voluntarily enforce it, the parties may continue to choose other forms of dispute resolution that are suitable for resolving disputes arising between them, such as initiating a lawsuit at a competent dispute settlement agency.

III. Advantages and drawbacks of dispute resolution negotiation method

1. Advantages

The negotiation method of dispute resolution has the following advantages:

• Negotiation is a common form of dispute resolution, which demonstrates the parties’ right to freedom of agreement and disposition.
• This method of resolving disputes is extremely popular among traders because it is simple, and not bound by complicated legal procedures.  This method saves time and costs of dispute resolution for the parties.  In particular, the bargaining method also does not harm the inherent snobbery between the parties as well as the secrecy and business reputation.
• When participating in the negotiation method, the disputing parties do not need to worry about early disclosure of legal arguments and could control the arguments. His argument and evidence are related to the handicap. Because no individual or organization forces the parties to provide evidence or substantiate their arguments, only the two parties     settlement and agreement to find a dispute settlement solution that meets the interests of the parties.
• In many cases, the bargaining method is a “lifesaver” for the breached party when the statute of limitations has expired. Accordingly, through negotiation,  the breaching party acknowledges part or all of the obligation that will be the basis for starting to recalculate the time the effect of initiating lawsuits specified at Point a Nuin 1, Article 157 of the Code of  Civil  Procedure

2.Disadvantages

Negotiation first of all requires goodwill, honesty, and cooperation. The agreement reached in the bargaining method is not enforceable but depends on the willingness of the parties.  Therefore, an unwilling party may take advantage of the negotiation method to prolong and delay the fulfillment of obligations.  This makes the advantage of the negotiation method, which saves time and costs cannot be achieved if one party does not voluntarily implement the negotiated solution.

Above is the content of the article “Advantages and Disadvantages of dispute resolution negotiation method”. Hope the above TNTP’s sharing is useful for those who are interested in this issue.

Respect.

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[et_pb_column type=”4_4″][et_pb_text admin_label=”Text”]Currently, dispute settlement by commercial arbitration is increasingly popular and popular in Vietnam.  Instead of suing in Court, the plaintiff will file a petition and ask the Arbitration Center to settle. However, what should the plaintiff keep in mind when participating in a dispute resolution lawsuit using the commercial property? Let’s follow TNTP’s article below to find the answer.

I. Disputes are resolved by Commercial Arbitration when the parties have an arbitration agreement

According to Clause 1, Article 5 of the Law on Commercial Arbitration 2010, disputes are resolved by arbitration if and only if the parties have an arbitration agreement Arbitration agreements may be made before or after a  dispute.

At the same time, according to Clause 1, Article 16 of the Law on Commercial Arbitration  2010, the arbitration agreement can be established in two forms: First, the arbitration clause; or two is a separate agreement.  In particular, the arbitration clause is usually defined in the contract signed between the parties or between the annexes to the contract. As for a separate agreement, the parties can establish at the time of the dispute that there is no provision in the contract about the material clause talent.

In addition, to resolve disputes in commercial arbitration, the parties also need to ensure that the arbitration agreement is not invalidated as prescribed in Article 18 of the  2010 Law on Commercial Arbitration; or that the arbitration agreement cannot be implemented as prescribed in Article 4  of Resolution  01/2014/NQ-HDTP.

2. Disputes are resolved by Commercial Arbitration when the statute of limitations remains

In principle, arbitration proceedings only begin when there is a petition filed by the plaintiff and the application must be filed when the dispute has a statute of limitations.

Currently, the statute of limitations for disputes resolved by Commercial Arbitration is determined by specialized law. If there is no specialized law or specialized law that does not provide for the statute of limitations for initiating lawsuits, the statute of limitations for initiating lawsuits under arbitration procedures is 02 years from the time of infringement of legitimate rights and interests.

3. Plaintiffs make and file Petitions

The petition must fully state the contents as prescribed in the procedural rules of the arbitration center;   ensure a sufficient number of copies of the Petition and other required documents  in the   petition (03 copies if the  agreement chooses  the Arbitration Committee)   single account, 05 sets if  agreed The arbitral  tribunal consists of 03 arbitrators)

Documents and evidence accompanying the Petition, the application must be submitted in addition to the arbitration agreement, evidence, and related documents. During arbitration proceedings, applicants may be asked to provide additional evidence and documentation to the public.

Regarding the arbitrator, the petitioner must choose an arbitrator or ask the arbitration center to appoint an arbitrator. Choosing a talent should consider several factors such as appropriate discipline, experience, prestige, and conflict benefit or not ?

4. Plaintiffs take note when deciding the value of the lawsuit  

According to the provisions of arbitration proceedings, when participating in the case, the plaintiff must pay the arbitration fee for the suit’s merits.  Where the plaintiff gives the too high and unreasonable value of the lawsuit. After the arbitral award, if the plaintiff does not win the case or does not win the full value of the lawsuit, the plaintiff must bear the arbitration fee for that non-winning part.

Therefore, when initiating a lawsuit at the arbitration center, the parties need to calculate and give a reasonable initiation value, avoiding the situation of being subject to arbitration fees more than the value of winning the case.

With the nature of speed, flexibility, efficiency, and finality along with other advantages,   dispute resolution by Arbitration trade is increasingly chosen by more and more people. However, the plaintiff should note the TNTP contents analyzed above to effectively use.

Above is the content of the article “Note to the plaintiff when resolving disputes by Commercial Arbitration”. Hope this article on TNTP will be useful to readers.

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