Precedent No. 03/2016/AL

About the "Divorce" case

Approved by the Council of Judges of the Supreme People's Court on April 6, 2016 and promulgated under Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law

Final judgment No. 208/2013/DS-GDT dated May 3, 2013 of the Civil Court of the Supreme People's Court on the "Divorce" case in Hanoi between the plaintiff, Ms. Do Thi Hong, and the defendant, Mr. Pham Gia Nam; the persons with related rights and obligations are Mr. Pham Gia Phac, Ms. Phung Thi Tai, Mr. Pham Gia On, Ms. Pham Thi Lu, Mr. Bui Van Dap, Ms. Do Thi Ngoc Ha.

Overview of case law

In case the parents have given the child and his/her spouse an area of ​​land and the child and his/her spouse have built a permanent house on that area of ​​land for residence, when the child and his/her spouse built the house, the parents and other family members had no objections; the child and his/her spouse have used the house and land continuously, publicly, and stably, and have declared the land and been granted a land use right certificate, it must be determined that the child and his/her spouse have been given the right to use the land.

Legal provisions relating to precedents

- Article 14 of the 1986 Law on Marriage and Family;

- Article 242 of the 1995 Civil Code;

- Clause 2, Article 176 of the 1995 Civil Code.

Keywords of case law

“Divorce”; “Common property of husband and wife”; “Gift of property”; “Basis for establishing ownership”; “Establishing ownership by agreement”.

Contents of the case

Ms. Do Thi Hong and Mr. Pham Gia Nam got married in 1992, registered at the People's Committee of Van Tao Commune, Thuong Tin District, Hanoi City. After living together for a while, conflicts arose, and the couple has been living separately since September 2008. On April 18, 2009, Ms. Hong filed a lawsuit for divorce from Mr. Nam, and Mr. Nam agreed.

Regarding their children: The couple has two children, Pham Gia Khang, born in 1992, and Pham Huong Giang, born in 2000. Ms. Hong and Mr. Nam both wish to raise both children and do not require the other to contribute to raising the children. Khang's wish is to live with Mr. Nam, Giang's wish is to live with Ms. Hong.

Regarding property: During their cohabitation, the couple built a two-story house in 2002 (an additional attic was built in 2005 to prevent heat), the house was built on an 80m2 plot of land ⁱⁿ Van Hoa hamlet, Van Tao commune, Thuong Tin district. Regarding the house, the couple agreed that it was the joint property of the couple. Regarding the land, the parties could not agree with each other.

According to Ms. Hong: The land belongs to Mr. Pham Gia Phac's family (Mr. Nam's father) who was granted land for resettlement in 1992. After that, Mr. Phac's family met and announced that they would give her and her husband the land area without any paperwork. In 2001, Mr. Phac went to the newspaper and Mr. Nam went through the procedures to get a red book, so he was granted a land use right certificate under Mr. Pham Gia Nam's name, so this land is the joint property of the couple.

She requested to use the above house and land and pay 1/2 of the value of the land and assets on the land to Mr. Nam as the price given by the Valuation Council.

According to Mr. Nam: His parents were granted this land for resettlement in 1992, but they only let him and his wife live there, not yet because his family had many siblings. In 2001, he declared and made the land papers himself, but his family did not know. His point of view is to return the land to Mr. Phac.

According to Mr. Phac and Mrs. Tai (Nam's parents): The land was originally his, granted by the People's Committee of Van Tao commune for resettlement in 1992, and he built a level 4 house on it. In 1993, his family let Nam and Hong go there to make a living, but did not give him land because his wife had been paralyzed for 15 years, and he and Mr. On (Nam's younger brother) had to take care of her. The family's wish was to leave this land to On because On did not have a place to live. When the family was granted resettlement land, there were only 4 people in the family: Mr. and Mrs. Tai, Ms. Lu, and Mr. On (Nam had left the locality). When Ms. Hong filed for divorce from Nam, the family found out that Nam had automatically transferred the land title in 2001. Now, Mr. and Mrs. Hong are asking Nam and Hong to return the land to them.

^{In addition, during the process of resolving the case, Ms. Hong also stated that Mr. Nam was given a plot of land with an area of ​​125 square meters} in Thach That district by the Army Officer School I. Initially, she requested to divide this plot of land, but later she did not request to resolve it anymore.

Regarding debt: According to Ms. Hong, the couple borrowed 7.5 taels of 9999 gold from Ms. Hoang Thi Chu (her mother), 1 tael of 9999 gold from Ms. Do Thi Ngoc Ha (her sister), and 150,000,000 VND from Mr. Bui Van Dap, with an interest rate of 1.25%/month. All of these loans were undocumented. She requested Mr. Nam to help her pay off the above debts.

According to Mr. Nam, the couple only owed Mrs. Chu 7.5 taels of gold, and he had paid 13,875,000 VND (equivalent to 3.75 taels of gold). He did not know about the other loans, and he did not agree to pay them as Ms. Hong requested.

On November 3, 2010, the Valuation Council valued the property as follows:

Land: 80m2 ^x 22,000,000 VND/m2 ⁼ 1,760,000,000 VND.

House: 475,865,000 VND. Total asset value: 2,235,865,000 VND.

In the First Instance Judgment No. 03/2011/HNGD-ST dated May 17, 2011, the People's Court of Thuong Tin District, Hanoi City decided:

1. Regarding marital relationship: Ms. Do Thi Hong is divorced from Mr. Pham Gia Nam.
2. Regarding the common child: Give Pham Huong Giang, born on August 14, 2000, to Ms. Hong to raise until adulthood. Temporarily postpone the contribution of child-rearing expenses to Mr. Nam until Ms. Hong requests. Mr. Nam has the right to visit the common child, no one can prevent him.
3. Joint property, contributions: Confirming that the two-story house with an attic and the entire construction on plot number 63, map sheet number 5 in Van Hoa, Van Tao commune, Thuong Tin district, Hanoi city is the joint property of Ms. Do Thi Hong and Mr. Pham Gia Nam with a value of 475,865,000 VND.
4. Confirm the right to use 80m2 of ^land plot number 63 on map sheet number 5 in Van Hoa, Van Tao commune, Thuong Tin district, Hanoi city belonging to Mr. Pham Gia Phac's household. Force Ms. Do Thi Hong and Mr. Pham Gia Nam to return to Mr. Pham Gia Phac's household the right to use 80m2 of ^land plot number 63 on map sheet number 5 in Van Hoa, Van Tao commune, Thuong Tin district, Hanoi city. Hand over to Mr. Pham Gia Phac's household the right to own all assets on this land plot including the two-story house and constructions on the land. Force Mr. Pham Gia Phac to pay Ms. Do Thi Hong and Mr. Pham Gia Nam each 237,932,500 VND.
5. Propose that the People's Committee of Thuong Tin district revoke the land use right certificate No. U060645 issued on December 21, 2001, under the name of Mr. Pham Gia Nam's household, to carry out procedures to reissue it to Mr. Pham Gia Phac when Mr. Phac requests.
6. Acknowledge Mr. Pham Gia Nam's voluntary support of Ms. Do Thi Hong with the amount of 800,000,000 VND.
7. Force Ms. Do Thi Hong to pay Mr. Bui Van Dap the amount of 179,820,000 VND.
8. I accept other requests of Ms. Do Thi Hong.

In addition, the Court of First Instance also ruled on court fees and the right to appeal.

On May 19, 2011, Ms. Hong filed an appeal against the entire First Instance Judgment.

On May 24, 2011, Mr. Nam appealed against the agreement to support Ms. Hong with 800,000,000 VND to build a new residence. However, at the appeal hearing, Mr. Nam withdrew this appeal request.

In the Appeal Judgment No. 105/2011/LHPT dated August 30, 2011 and September 6, 2011, the Hanoi People's Court decided:

Uphold the First Instance Marriage and Family Judgment No. 03/2011/HNGD-ST dated May 17, 2011 of the People's Court of Thuong Tin District, Hanoi City (as stated above).

In addition, the Court of Appeal also ruled on court costs.

After the appeal trial, Ms. Hong and Ms. Hoang Thi Chu submitted a request for review under the supervisory procedure for the above-mentioned Appeal Judgment.

In the Appeal Decision No. 05/2013/KN-HNGD-LD dated January 3, 2013, the Chief Justice of the Supreme People's Court appealed against the Appeal Judgment on Marriage and Family No. 105/2011/LHPT dated August 30, 2011 and September 6, 2011 of the Hanoi People's Court. Requesting the Civil Court of the Supreme People's Court to conduct a final review in the following direction: annul the above Appeal Judgment on Marriage and Family and the First Instance Judgment on Marriage and Family No. 03/2011/HNGD-ST dated May 17, 2011 of the People's Court of Thuong Tin District, Hanoi City regarding the property relationship; handing over the case to the People's Court of Thuong Tin District, Hanoi City for a retrial in accordance with the provisions of law.

At the appeal hearing, the representative of the Supreme People's Procuracy stated that regarding the disputed land, when the land was granted to Mr. Phac's family for resettlement, Mr. Nam was not included, and there was no basis to believe that the parents had given it to Mr. Nam and his wife, so the land still belonged to Mr. Phac's family. The two-level court had a basis for determining that the land belonged to Mr. Nam's parents. There was an error in the debt of Ms. Chu. Therefore, the Trial Panel was requested not to accept the appeal of the Chief Justice of the Supreme People's Court.

Court opinion

Regarding the marital relationship and common children, the Courts at all levels have resolved the issue, and the parties have no complaints.

Regarding property relations: The property that the parties are disputing is an area of ​​80 square meters of land ⁱⁿ Van Hoa hamlet, Van Tao commune, Thuong Tin district, Hanoi city, under the name of Mr. Pham Gia Nam.

The records show that the origin of the above land area belongs to Mr. Pham Gia Phac, who was granted land for resettlement by the People's Committee of Van Tao commune, Thuong Tin district in 1992. Based on the minutes of land handover of the People's Committee of the commune to Mr. Phac, at the time of this land handover minutes, Ms. Hong was married to Mr. Nam. However, according to the verification of the Court of First Instance in Van Tao commune, Thuong Tin about the land allocation procedures, Van Tao commune had a policy of granting land for resettlement since 1991. Although when carrying out the land allocation procedures, Mr. Phac's family only had 4 people: Mr. Phac, Mrs. Tai, Ms. Lu, and Mr. On (because at this time, Mr. Nam was in the army and had not returned to the locality), but the land allocation for resettlement was to grant land to a large household, to Mr. Phac, his wife and children, so Mr. Nam was also eligible for land allocation. After receiving the land, Mr. Phac's family built a level 4 house. In 1993, Mr. Phac's family allowed Mr. Nam and Ms. Hong to live separately on this land and they have been the ones to manage and use the land continuously since then.

Ms. Hong said that Mr. Phac's family had declared to give her and her husband the above land area, Mr. Phac and Mr. Nam affirmed that the family had not given it to the couple.

Considering: According to the verification at the People's Committee of Van Tao commune, in 2001, the commune organized for households in Van Tao commune to register and declare for consideration of granting certificates of land use rights and the households declared at the hamlet headquarters (BL 103). All households in the commune were aware of this land declaration policy. Mr. Phac is the land owner but did not declare. Mr. Nam is living on the land and is the one who declared and carried out the procedures for granting the certificate. On December 21, 2001, Mr. Nam was granted a land use right certificate No. U060645 in the name of Mr. Pham Gia Nam. The couple built a solid 2-storey house in 2002 and in 2005, they added a 3rd floor attic. Mr. Phac and the siblings in Mr. Nam's family all knew about the construction of Mr. Nam and Ms. Hong, but no one had any comments. Thus, from the time the certificate was granted (2001) until the divorce of Mr. Nam and Ms. Hong (2009), Mr. Phac's family did not have any complaints about the land grant and house construction. That shows the will of Mr. Phac's family to give Mr. Nam and Ms. Hong the above land area. Therefore, Mr. Phac and Mr. Nam's statement that Mr. Nam voluntarily declared the land documents and Mr. Phac did not know is not acceptable. Thus, there is a basis to determine that Ms. Hong's statement that Mr. Phac's family gave them the above land area is well-founded.

Therefore, the Courts at all levels' determination that Mr. Nam went to make land papers for Mr. Phac without his knowledge and that Ms. Hong claimed that her husband's family had given it to the couple but there was no evidence to prove it, to determine that the 80m2 land area ⁱⁿ Van Hoa village, Van Tao commune, Thuong Tin district, Hanoi city is the property of Mr. Pham Gia Phac's household; at the same time, forcing Mr. Nam and Ms. Hong to return the land to Mr. Phac's family, is incorrect. It is necessary to determine that the disputed land area is the common property of Mr. Nam and Ms. Hong and when dividing, it must be considered that Mr. Nam contributed more to divide according to the efforts of each party and it is necessary to base on the need for housing to divide the property for the parties to ensure the rights of the parties.

Regarding the complaint of Ms. Hoang Thi Chu (Ms. Hong's biological mother), it is found that: On May 7, 2011 (before the first instance trial date), Ms. Chu submitted a petition to the People's Court of Thuong Tin district, stating: "Today is May 7, 2011, I have received the money my children paid me. I do not request the Court to resolve it anymore". The first instance court declared the public fund for the amount of advance court fees paid by Ms. Chu (VND 200,000), but did not declare the suspension of the settlement of Ms. Chu's debt collection request, which is contrary to the provisions of Point d, Clause 1, Article 192 of the Civil Procedure Code. However, after the first instance trial, Ms. Chu did not appeal and the Procuracy did not protest, so the Appellate Court, based on Article 263 of the Civil Procedure Code, only reviewed the part of the first instance judgment or decision that was appealed or protested or related to the review of the content of the appeal or protest, so the protest of the Chief Justice of the Supreme People's Court on the above content was unnecessary.

Therefore, the Supreme People's Court Civil Court's Board of Judges considers that the appeal of the Chief Justice of the Supreme People's Court regarding the disputed property of Mr. Nam and Ms. Hong (80 square meters of ^land in Van Hoa hamlet, Van Tao commune, Thuong Tin district, Hanoi) is well-founded and acceptable.

For the above reasons, pursuant to Clause 2, Article 291; Clause 3, Article 297 and Article 299 of the Civil Procedure Code;

Decision

Annul the Family and Marriage Appeal Judgment No. 105/2011/LH-PT dated August 30, 2011 and September 6, 2011 of the People's Court of Hanoi City and the Family and Marriage First Instance Judgment No. 03/2011/HNGDST dated May 17, 2011 of the People's Court of Thuong Tin District, Hanoi City regarding the property relationship, which resolved the "Divorce" case between the plaintiff, Ms. Do Thi Hong, and the defendant, Mr. Pham Gia Nam;

Transfer the case file to the People's Court of Thuong Tin district, Hanoi city for retrial according to the provisions of law.

Case law content

“According to the verification at the People's Committee of Van Tao commune, in 2001, the commune organized for households in Van Tao commune to register and declare for consideration of granting certificates of land use rights and the households declared at the hamlet headquarters (BL 103). All households in the commune were aware of this land declaration policy. Mr. Phac is the land owner but did not declare. Mr. Nam is living on the land and is the one who declared and carried out the procedures for granting the certificate . On December 21, 2001, Mr. Nam was granted a land use right certificate No. U060645 in the name of Mr. Pham Gia Nam. He and his wife built a solid 2-storey house in 2002 and in 2005, they added a 3rd floor attic. Mr. Phac and his siblings all knew about the construction of Mr. Nam and his wife , but no one had any comments . Thus, from the time the certificate was granted ( 2001) until the divorce of Mr. Nam and Ms. Hong ( 2009), no one in Mr. Phac's family had any complaints about the land grant and house construction. That shows the will of Mr. Phac's family to give Mr. Nam and Ms. Hong the above land area . Therefore, the statement of Mr. Phac and Mr. Nam that Mr. Nam voluntarily declared the land documents and Mr. Phac did not know is not acceptable. Thus, there is a basis to determine that Ms. Hong's statement that Mr. Phac's family gave them the above land area is well-founded.

Therefore, the Courts at all levels' determination that Mr. Nam went to make land papers for Mr. Phac without his knowledge and Ms. Hong declared that her husband's family had given it to the couple but there was no evidence to prove it, to determine that the ^80m2 land area in Van Hoa village, Van Tao commune, Thuong Tin district, Hanoi city is the property of Mr. Pham Gia Phac's household; at the same time, forcing Mr. Nam and Ms. Hong to return the land to Mr. Phac's family, is incorrect. It is necessary to determine that the disputed land area is the common property of Mr. Nam and Ms. Hong and when dividing, it must be considered that Mr. Nam has contributed more to divide according to the efforts of each party and it is necessary to base on the need for housing to divide the property for the parties to ensure the rights of the parties."

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