One of the main issues when ending the marriage relation is to solve the property issue between the husband and wife upon divorce. Their property includes marital property owned during the marriage period and separate property. Separate property belongs to a person only. Therefore, in order to ensure their private ownership of property, the husband and wife is liable for proving his/her separate property in the marital property upon divorce.
For proving the separate property when divorce, the husband and wife must determine which property is considered to be a separate property according to provisions of the current law. The Law on Marriage and Family stipulates the following cases that a property is considered separate property:
- Property individually owned before marriage;
- Property inherited or gifted separately during the marriage period;
- Property divided between husband and wife under the agreement on separation of matiral property during the marriage period;
- Yields and profits arising from the separate property during the marriage period after separation of the marital property during the marriage period;
- Property to meet his/her essential needs; and
- Other properties which are under the separate ownership as prescribed by the
The above properties will automatically be the separate property of the husband or the wife without proving the separate property unless otherwise agreed by the spouses.
The parties are only obliged to prove the separate property when divorce when they believe there is an ambiguity in determining their separate property in the marital property, causing a dispute over the separate/marital ownership of the property. If there is no ground to prove that the property in dispute is a separate property, such property shall be considered to be the marital property of the spouses and divided in accordance with curent law or by agreement between the parties. Proving the separate property when divorce will depend on the origin of the property and the time at which ownership of the property is transferred.
In fact, unless the property is legitimately registered in accordance with the law, it is difficult to verify the origin and the time of transfer of the ownership, while the provisions of the law cannot fully cover all the situations. Thus, if you have trouble with proving the separate property when divorce, please contact us.
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 Article 33.3 of Law on Marriage and Family 2014