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VIETNAM NATIONAL UNIVERSITY HANOI SCHOOL OF LAW

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LÊ ĐỨC HƯNG

THE PROPERTY REGIME OF HUSBAND AND WIFE BY

AGREEMENT UNDER THE CURRENT VIETNAMESE MARRIAGE AND FAMILY LAW – THEORY, LAW, PRACTICE

GRADUATION THESIS Major: Law

High quality program Course: QH-2018-L Student code: 18062016

Hanoi, 2022

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VIETNAM NATIONAL UNIVERSITY HANOI SCHOOL OF LAW

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LÊ ĐỨC HƯNG

THE PROPERTY REGIME OF HUSBAND AND WIFE BY

AGREEMENT UNDER THE CURRENT VIETNAMESE MARRIAGE AND FAMILY LAW – THEORY, LAW, PRACTICE

GRADUATION THESIS Major: Law

High quality program Course: QH-2018-L Student code: 18062016

SUPERVISOR: ThS. Trần Công Thịnh

Hanoi, 2022

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UNDERTAKINGS

The author hereby declares that the graduation thesis entitled “The property regime of husband and wife by agreement under the current Vietnamese marriage and family law - Theory, law, practice” is the author's own independent research work. The research contents and results in the graduation thesis have not been published in any works. The article uses a number of research results, legal scientific opinions of some authors, researchers and this information is honestly cited, clearly showing the clear origin, in accordance with the regulations.

The author is responsible for the accuracy and truthfulness of the graduation thesis!

THESIS AUTHOR

Lê Đức Hưng

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TABLE OF CONTENTS

INTRODUCTION ... 1

1. The urgency of studying the graduation thesis ... 1

2. Graduate thesis research situation ... 2

3. Subjects and scope of study of graduation thesis ... 4

4. Graduate thesis research method ... 4

5. Purpose of the study of graduation thesis ... 5

6. Structure of graduation thesis ... 5

CHAPTER 1: ... 6

GENERAL THEORY OF THE PROPERTY REGIME OF HUSBAND AND WIFE BY AGREEMENT ... 6

1.1. The concept of the property regime of husband and wife ... 6

1.2. Concepts and characteristics of the conjugal property regime according to the agreement ... 8

1.2.1. Concept of conjugal property regime by agreement<small> ... 8 </small>

1.2.2. Characteristics of the property regime of the spouses according to the agreement.<small> ... 11 </small>

1.3. The meaning of the conjugal property regime according to the agreement 14 1.4. Generalization of the property regime of spouses in Vietnamese law throughout historical periods ... 16

1.4.1. Husband and wife's property regime during the feudal period<small> ... 17 </small>

1.4.2. The property regime of spouses during the French colonial period.<small> .... 18 </small>

1.4.3. Husband and wife property regime by agreed between August 1945 and March 24, 1977<small> ... 20 </small>

1.4.4. The regime of husband and wife is under the agreement since the reunification of the country until now<small> ... 23 </small>

1.5. The regime of conjugal property as agreed in the law of some nations in the world. ... 25

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1.5.1. The regime of property of husband and wife by agreement in the French

Civil Code.<small> ... 26 </small>

1.5.2. The regime of property of conjugal by agreement in the Thailand Civil and Trade Code<small> ... 30 </small>

1.5.3. Some comments, general assessments<small> ... 34 </small>

CHAPTER 1 SUB - CONCLUSION ... 36

CHAPTER 2: ... 37

CONTENTS OF THE CURRENT VIETNAMESE MARRIAGE AND FAMILY LAW ON THE PROPERTY REGIME OF HUSBAND AND WIFE BY AGREEMENT 372.1. Mandatory general provisions for the property regime of spouses as agreed upon ... 37

2.1.1. Principles of application of the property regime of spouses<small> ... 37 </small>

2.1.2. General principles on the property regime of spouses<small> ... 39 </small>

2.1.3. Rights and obligations of husband and wife to meet their family’s essential needs<small> 40 </small>2.1.4. Transactions related to the home are the sole domicile of the spouses<small> .... 41 </small>

2.1.5. 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<small> ... 42 </small>

2.2. Current regulations on establishment of the property regime of spouses under the agreement ... 44

2.2.1. The time of establishment of the property regime of spouses as agreed upon<small>……….44 </small>

2.2.2. Form of agreement on the property regime of spouses<small> ... 45 </small>

2.2.3. The contents of the agreement of the spouses on the property regime<small> .... 46 </small>

2.3. Current regulations on amendments and supplements to agreements on property regimes of spouses ... 53

2.3.1. Contents of regulations on amendments and supplements to the agreement on property regime of spouses<small> ... 53 </small>

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2.3.2. Effectiveness of amendments and supplements to the agreement of spouses on

2.5. Termination of the property regime of spouses under the agreement ... 60

2.5.1. In case of termination of the property regime of spouses under the agreement because a spouse has died or is declared dead by the court<small> ... 60 </small>

2.5.2. In case of termination of the property regime as agreed upon due to divorce<small>61 </small>2.5.3. The case of annulment of an illegal marriage<small> ... 63 </small>

CHAPTER 2 SUB-CONCLUSION ... 66

CHAPTER 3: ... 67

PRACTICAL APPLICATION AND RECOMMENDATIONS TO IMPROVE THE CURRENT VIETNAMESE LAW ON MARRIAGE AND FAMILY ON THE PROERTY REGIME OF HUSBAND AND WIFE BY AGREEMENT ... 67

3.1. Practical application of Vietnamese marriage and family law on the property regime of husband and wife by agreement ... 67

3.2. Inadequacies and causes of inadequacies of the application of Vietnamese marriage and family law on the agreed property regime of husband and wife ... 70

3.2.1. The tradition of choosing the property regime of spouses<small> ... 70 </small>

3.2.2. Inadequacies in the provisions of the law on marriage and family on the property regime of husband and wife as agreed<small> ... 71 </small>

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CHAPTER 3 SUB - CONCLUSION ... 88CONCLUSION ... 89REFERENCES ... 90

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INTRODUCTION 1. The urgency of studying the graduation thesis

In order to maintain the stability and happiness of the marriage in particular and the family in general, it is necessary to ensure two factors, namely the emotional factor and the material factor - property. In particular, the material factor - property is often a sensitive factor and greatly affects the emotional factor. Material factors - property is an important foundation for husband, wife, and family members to bond, it helps to develop the family's life and helps the family and members perform their economic, and socioeconomic functions. With such influence, the State adopts legislation to regulate issues related to property relations in the married life of couples. This regulation can be understood as the property regime of husband and wife.

Previously, Vietnam's marriage and family law only recognized the statutory property regime to regulate issues related to the property of husband and wife. However, by the time of promulgation of the Law on Marriage and Family in 2014, our State had recognized a new type of property regime, which is the property regime of husband and wife according to the agreement, this property regime existed parallel with property regime of the spouse under the law. The new property regime allows spouses or, rather, couples before marriage to actively agree on issues related to their property to apply to adjust property relations of husband and wife during marriage.

The fact that Vietnamese law recognizes the type of property regime of husband and wife under the agreement is to ensure human rights and citizens' rights are recognized in the constitution and law. Specifically, the right to freely dispose of personal property. The recognition of this type of property regime also brings many important meanings to the marriage and family life of many couples; The most important thing is that in a market economy that opens up many investment opportunities, the law allows husband and wife to agree on the property regime will help them exercise their freedom to do business, invest and develop the asset. In addition, the couple's agreement on the property has great significance in resolving divorce cases that require property

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2. Graduate thesis research situation

The topic of the marital property regime under the agreement has brought a lot of attention attention from many research authors from Associate Professors - PhDs to Masters, PhDs, Lawyers, and even students. . Articles of these authors are published on reputable information channels such as jurisprudence journals, legislative research journals, and also on websites of the Department of Justice and the website of the Vietnam Bar Federation. ... Typical articles with research value on this topic can be mentioned as follows:

The most typical is the scientific researcher PGS.TS. Nguyen Van Cu, who has done a lot of scientific research on this topic. His articles have improved his knowledge and provided a lot of useful information year after year. His research publications must be mentioned: Chế độ tài sản của vợ chồng theo pháp luật Hơn nhân và gia đình Việt Nam, Doctoral thesis in Law, 2005; Một số vấn đề về hôn ước và quan điểm áp dụng ở Việt Nam hiện nay, Jurisprudence Journal No. 10/2012, 2012; Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hơn nhân và gia đình Việt Nam, jurisprudence

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The article, Chế độ tai sản thỏa thuận trong pháp luật một số nước và đề xuất cho Việt Nam, published in the Legislative Research Journal, on August 1, 2016, by two authors, PGS.TS.Nguyen Ngoc Dien and TS.Doan Thi Phuong Diep. The article is carefully invested and has great reference value. The article studies the legal systems of many countries in the world such as France, Thailand and Belgium; The authors have analyzed the legal provisions on the property regime of husband and wife under the agreement of these three countries and proposed valuable recommendations for reference to improve the legal provisions of Vietnam.

Some of the master's thesis written on the subject's content must be listed as: Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam - by author Nguyen Thi Thuy Hong, Hanoi University of Law, in 2018;

Chế độ tài sản của vợ chồng theo thỏa thuận với việc bảo vệ quyền và lợi ích hợp pháp của người thứ ba – by author Nguyen Huong Giang, Hanoi University of Law, in 2017;

Chế độ tài sản của vợ chồng theo thỏa thuận theo Luật Hơn nhân và gia đình Việt Nam năm 2014 – author Nguyen Thi Thu Thuy, Hanoi University of Law, 2015;

Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hôn nhân và gia đình Việt Nam - author Ngo Thi Anh Van, Ho Chi Minh City University of Law, 2016.

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These articles provide a large amount of theoretical and practical knowledge, in addition, the authors present their own views and perspectives on the advantages, limitations, and inadequacies of legal regulations of Vietnam regarding the property regime of husband and wife as agreed.

In general, since before and after the 2014 Law on Marriage and Family was promulgated, in the legal science of Vietnam there have been many research works on this topic, however, each author has a different perspective, a different scientific view of this kind of property regime. In fact, there are still some conflicting views on the application of the spousal property regime. In order to have a comprehensive and complete perspective, as well as evaluate the reality of current legal regulations in the present and future period, it is very necessary to have a new research work to meet this problem. Therefore, the above-mentioned research works will have great significance in providing a large amount of theoretical knowledge for the writer to research and apply in order to make the best graduation thesis.

3. Subjects and scope of study of graduation thesis

For this graduation thesis, the writer will focus on researching the theory and provisions of the current Vietnamese marriage and family law on the property regime of husband and wife under the agreement and the actual situation of this regulation of the marriage and family law

The property regime of husband and wife is no longer strange in the laws of many countries around the world and for Vietnamese law, the property regime under the agreement is recognized in the Law on Marriage and Family 2014. Therefore, the graduation thesis will mainly explore and present the research results on the property regime of husband and wife under agreement in the marriage and family law of Vietnam.

4. Graduate thesis research method

In order to do well in this graduation thesis, the author has used a combination of different research methods:

Analytical and synthesis method: this method is used throughout the graduation thesis, whereby the author uses the method to learn, recognize and evaluate the content

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of current legal regulations on the property regime of husband and wife according to an agreement. In addition, the author also learns, analyzes, and synthesizes the views of scientific researchers on this topic in many different scientific works to serve as evidence to prove and support the point of view of the author

Comparative method: This method is mainly used in some contents in the article, namely comparing the provisions of Vietnamese law in the development process and comparing the legal provisions of some countries with the current Vietnamese marriage and family law provisions on the agreed property regime.

5. Purpose of the study of graduation thesis

The graduation thesis will have the purpose of clarifying the theoretical issues surrounding the property regime of husband and wife under agreement. In addition, the author will present and evaluate the content of Vietnam's legal provisions on marriage and family on this type of property regime. On the basis of awareness and evaluation, the writer will present recommendations to improve and contribute to ensuring the applicability of these legal provisions.

6. Structure of graduation thesis

The graduation essay will have a structure of 03 chapters:

Chapter 1: General theory of the property regime of husband and wife by agreement Chapter 2: Contents of the current Vietnamese marriage and family law on the property regime of husband and wife by agreement

Chapter 3: Practical application and recommendations to improve the current Vietnamese law on marriage and family on the property regime of husband and wife by agreement

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CHAPTER 1

GENERAL THEORY OF THE PROPERTY REGIME OF HUSBAND AND WIFE BY AGREEMENT

1.1. The concept of the property regime of husband and wife

Family is known as a cell of society, family development is also the basis for society to develop. Accordingly, in order for the family to develop, not only family members, especially the couple, must ensure the spiritual element of always loving, loyal, respecting, and helping each other, but also must ensure both material factors as the economic base of the family. If the family's economic base is solid, stable, and developed, it will help the family develop and make many contributions to society.

Before coming together, a man and a woman are two separate individuals, owning separate properties, with separate rights and obligations over their property, however, when the two parties have decided to step When it comes to married life, the legal status of the two people changes and is quite complicated, especially in the relationship of property ownership between husband and wife. In other words, the ownership of the property of the parties to the property acquired before and after the marriage is not clear. Theoretically, it is possible to apply the provisions governing the property of husband and wife like other people who are not husband and wife, such as: the property of which party that party has the right to possess, use and dispose. The legal income of each spouse is the separate property of the husband and wife… However, this theory cannot be applied to husband and wife in practice. Because the marital relationship is of a community nature, after marriage, the couple eats together, live together, work together, share the same will in building the property, building a happy and stable family because common interests of the family, family members, and the prosperity of society.

If there is no basis as a basis to solve arising problems related to the property ownership regime of husband and wife, it will cause serious consequences for their marriage, this can be mentioned as follows: arising conflicts and disputes over property relations in the marriage about the use of the common and separate property of the couple, moreover affecting the rights and interests of a third party when participating

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into civil transactions with spouses. Therefore, the property regime of husband and wife is studied and built as one of the basic institutions of the law on marriage and family. The spouse's property regime is the basis and plays an important role in adjusting the arising issues related to the couple's property.

Currently, the law still does not have a specific concept of the term "property regime of husband and wife". Instead, the concept of the spousal property regime is found only in textbooks, journals, and scientific research. Because there is no unified concept, there are many different concepts in practice. Accordingly, in the "Legal Dictionary," it is defined: "the husband and wife's property regime is a synthesis of the law provisions on the rights and obligations of husband and wife towards common and separate property"<small>1</small>. For this concept, the authors have not fully recognized other elements of the husband and wife's property regime such as provisions on agreement on property regime or grounds for establishing property, etc

PGS.TS. Nguyen Van Cu said: “The property regime of husband and wife is a synthesis of legal regulations governing the (owning) property of husband and wife, including regulations of agreement on the property regime; on grounds for establishing property, rights and obligations of husband and wife with respect to common and separate property; cases and principles of division of property between husband and

complete than the first concept. This is reflected in the fact that he believes that the husband and wife's property regime includes regulations of agreement on the property regime, this is a record of the type of property regime of the husband and wife according to the law.

It can be seen that the husband and wife's property regime governs issues related to the property relationship of husband and wife, such as the determination of common or separate property; rights and obligations of husband and wife towards the common

<small>1 Ministry of Justice – Institute of Legal Sciences (2006), Từ điển luật học, Encyclopedia Publishing, Judicial Publishing. </small>

<small>2 Hanoi Law University (2021), Giáo trình Luật hơn nhân và gia đình Việt Nam, People's Public Security Publishing , Hanoi, page.164. </small>

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and separate property, and issues related to property division. In addition, it is also a legal basis to protect the rights and interests of third parties in transactions related to the property of husband and wife. At the same time, it is the legal basis for settling property disputes between husband and wife and between husband and wife and third parties by competent state agencies.

From these analyzes and proofs on the concept of the couple's property regime cited above, the following concepts can be drawn: The husband's property regime is a system of legal norms governing the issues related to the property relationship of husband and wife, including: grounds for establishing property of husband and wife; rights and obligations of husband and wife towards common and separate property;

Currently, according to Vietnam's marriage and family law, in addition to the husband and wife's property regime according to the statutory regime, the law also recognizes the property regime of the husband and wife by agreement. It can be seen that this is a big change in legislative thinking in Vietnam. For this new recognition, the above concept has ensured the rationality.

1.2. Concepts and characteristics of the conjugal property regime according to the agreement

1.2.1. Concept of conjugal property regime by agreement

As mentioned above, the husband and wife's property regime as agreed is part of the husband's property regime. It can be said that this is a special kind of regime because it shows the principle that individuals are entitled to freely dispose of their property and freely and voluntarily join agreements enshrined in the Constitution. The property regime of husband and wife under the agreement is recognized in the marriage and family laws of many countries around the world. First of all, in the bourgeois countries, the peculiarity of the marriage and family laws of these countries is the promotion of individual freedom, freedom of agreement, and the freedom to make decisions of the

<small>3 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.9. </small>

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subjects in the relationship of marriage and family, especially in the relationship between spouses. In the opinion of the legislators, marriage is essentially a kind of "civil contract" and differs only from other common civil contracts in the establishment and termination. Therefore, in the marital relationship, the right of husband and wife to freely form an agreement on the property regime has become a principle and the first solution when regulating the matrimonial property regime.

Basically, the property regime under the agreement must be chosen and agreed upon by the spouses themselves. In case the spouses do not have a written agreement on the property regime as the basis for selecting the property regime under this agreement or this agreement is invalidated, the statutory property regime will be applied to adjust the property relationship of the spouse. It can be seen that the property regime of the couple under the agreement has a close relationship with the agreement on the property regime. The agreement on this property regime has many different names such as marriage contract, and prenuptial contract. In order to find out how to understand the property regime of the spouses by agreement, it is necessary to first understand the agreement on the property regime of the spouses because these two issues are related to each other.<small>4</small>

PGS.TS. Nguyen Van Cu said that “marriage contract (also known as marriage contract) under the laws of Western countries is a written agreement (contract) that the couple has been married to each other since before marriage in order to adjust the

contract is an agreement between husband and wife on the choice of the regime of management and payment of property in the family to apply to the duration of their marriage”<small>6</small>.

The above views on the agreement on the husband and wife's property regime are the basis for understanding the nature of the agreement on the husband's property regime.

<small>4 This phrase is used in Vietnamese marriage and family law. </small>

<small>5 Nguyễn Văn Cừ (2012), “Một số vấn đề về hôn ước và quan điểm áp dụng ở Việt Nam hiện nay”, Journal of Jurisprudence, No. 10/2012, page.3-page.9. </small>

<small>6 Nguyễn Hồng Hải (1998), “Vấn đề thừa nhận chế độ tài sản ước định trong Luật hơn nhân và gia đình Việt Nam”, Jurisprudence Journal, page.10. </small>

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Firstly, the agreement on the husband and wife's property regime only comes into force between those who have a legal marriage relationship (recognized by the state as a marriage relationship) and it contributes to creating favorable conditions for husband and wife to be free—more ownership in financial organization, and future planning. This means that the time when the parties legally get married will be the time to determine the effect of the agreement between the two parties, even though both parties have signed it before. The subject of the agreement must be a man and a woman. This is defined in the traditional sense and in accordance with the laws of Vietnam and some countries that do not recognize same-sex marriage. Secondly, in terms of form, the agreement between husband and wife on the property regime must be made in writing. Usually, it must be certified by a competent agency, organization, or individual. In addition to these, the agreement on the husband and wife's property regime must ensure stability, long-term, and sustainability in its application, however, according to the law in some countries, in the process of its application, it may be amended and supplemented to ensure it is consistent with the interests of the spouses, the interests of the family, the interests of the third party participating in transactions related to the husband and wife's property in reality.

Thus, according to the agreed property regime of husband and wife, both husband and wife have the right to freely agree on issues related to their property during the marriage. The agreement must be made in writing and made before marriage. The purpose of the agreement on the matrimonial regime of the husband and wife during the marriage is to ensure the freedom and self-determination of property of the husband and wife, but always ensure to uphold the interests of the family and family members. In addition, it also helps the judicial authority to settle disputes easily and conveniently, minimizing disputes in actual arising.

From the above analysis, the following concepts can be drawn: The property regime of husband and wife by agreement can be understood as the property regime established on the basis of the agreement of the man and the woman in the form of a document before the marriage. Its contents including grounds and origin for determining

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a common and separate property of husband and wife; the husband and wife's rights and obligations with respect to such property and the conditions, procedures, and principles for the division of husband and wife's property.<small>7</small>

In addition to the above interpretation, the property regime can also be understood in another direction. Accordingly, the property regime of husband and wife under the agreement is a synthesis of legal regulations governing issues related to the agreement of husband and wife on property relations, including: the husband and wife's agreement on the property regime, the basic contents of the agreement and the cases in which the

concept is also built on the basis of the provisions of Vietnamese law. According to this concept, the agreed property regime of husband and wife is understood as a synthesis of the provisions of law, but these regulations do not directly set forth the principles governing the property relationship of husband and wife. Instead, these regulations create a basic legal corridor that shows the orientation of marriage and family law to the property relationship of husband and wife, creating the orientation for the spouse's agreement on the property regime. In summary, when the law does not have a specific provision on the concept of the agreed-upon property regime, it can be understood in many different ways.

1.2.2. Characteristics of the property regime of the spouses according to the agreement.

Because it is one of the husband and wife's property regimes, the agreed-upon husband and wife's property regime will have some common features of the property regime, and besides, it also has its own outstanding characteristics presented below:

First, subjects participating in the property regime must have a legal marriage relationship as husband and wife. Considering the agreed-upon property regime, even though the parties have an agreement on the property regime that ensures the conditions

<small>7 Nguyễn Thị Thu Thủy (2015), Chế độ tài sản của vợ chồng theo thỏa thuận theo luật Hơn nhân và gia đình năm 2014, Master's Thesis in Law, Hanoi Law University, Hanoi, page.9. </small>

<small>8 Ngô Thị Anh Vân (2016), Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hôn nhân và gia đình Việt Nam, Master's Thesis in Law, Ho Chi Minh City University of Law, Ho Chi Minh City, page.12. </small>

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Third, stemming from the important role of the family in society, the law on the property regime of husband and wife always aims to ensure the interests of the family,

husband and wife follow, according to the law, they still have the obligation to ensure that the material and spiritual life and interests of the family are always guaranteed to be stable and best.

Fourth, the husband and wife property regime have its own particularity in the exercise of the subject's rights and obligations<small>10</small>. Accordingly, when exercising the rights and obligations of common and separate property, husband and wife must ensure the common interests of the family. Normally, when a husband and wife use common property to meet the essential needs of the family, the law is considered to have an implicit agreement of the husband and wife. The disposition of properties of great value must be agreed in writing by both husband and wife. With regard to separate property, husband and wife have the right to dispose of their own property without depending on

In addition to the common characteristics listed and analyzed, the property regime of husband and wife under the agreement also has its own characteristics, shown as follows:

<small>9 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.10. </small>

<small>10 Nguyễn Thị Thu Thủy (2015), Chế độ tài sản của vợ chồng theo thỏa thuận theo luật Hôn nhân và gia đình năm 2014, Master's Thesis in Law, Hanoi Law University, Hanoi, page.12. </small>

<small>11Lê Thị Dung (2016), Chế độ hơn sản trong Luật hơn nhân và gia đình năm 2014, Master thesis of jurisprudence, School of Law (Hanoi National University), Hanoi, page.10. </small>

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Firstly, the husband and wife's property regime as agreed upon by the parties is to be applied on the basis of the principle of voluntariness and equality. Accordingly, the principle of voluntariness is reflected in the fact that the parties voluntarily choose the property regime of the husband and wife according to the agreement, and the parties agree to agree on the property regime voluntarily, without coercion or cheating. The principle of equality is reflected in the agreement between the parties with equal status, without discrimination between husband and wife in terms of gender, wealth, poverty, religion, belief, or nationality. The terms of the agreement established must also show equality between husband and wife in property relations.

Secondly, the agreed-upon marital property regime must be established on the basis of a written agreement on the property regime made before marriage, effective from the time the husband and wife relationship is established (usually from the time, the parties register their marriage at the competent state agency). This is an important feature that comes from the practice of marriage and family laws in some countries

evidence to prove that the husband and wife have chosen to apply the husband and wife's property regime according to the agreement. This written agreement must satisfy the conditions on form and content as prescribed by law.

Thirdly, the husband and wife's property regime as agreed upon may be amended and supplemented through a written agreement on the property regime during the marriage. This is quite different from the statutory property regime. It can be seen that the property regime of husband and wife under the agreement must be applied in a long-term and stable manner to ensure that the lives of family members are not turned upside down. However, in order to ensure that the husband and wife's agreement is suitable to the changing situation, conditions, and circumstances of the family, the law allows the parties to have the right to amend and supplement part or the whole of the initial

<small>12Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.12. </small>

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established for the marital relationship but is instead established by the couple's choice before marriage. it does not limit the rights and obligations of husband and wife towards

1.3. The meaning of the conjugal property regime according to the agreement The fact that countries in the world including Vietnam recognize the property regime of spouses as agreed in the marriage and family law can be said to show an acknowledgement of the positive meanings this type of property regime brings. Specifically, each meaning is as follows:

Firstly, the property regime of the spouses under the agreement is the basis for ensuring the right of the individuals to self-determination of their property. In the Vietnamese legal system, this right is enshrined in the Civil Code 2015, Article 17 stipulates: "1. Personal rights are not tied to property and personal rights are tied to property. 2. Ownership, inheritance rights and other rights to property. 3. The right to participate in civil relations and to have an obligation arising from that relationship."

<small>13 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.13. </small>

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On the basis of the above-mentioned legal provisions, the individual has the right to possess, use and dispose of his property on the basis of freedom without being restricted by the will of others as long as it does not contravene the provisions of law and does not affect the national interest, people, public interest, legitimate rights and interests of others.

Although in the Law on Marriage and the Family when noting the statutory property regime, there are also provisions for the rights and obligations of spouses in the possession, use and disposition of common and private property during the marriage period. However, the further recognition of the property regime of the spouses under the agreement will ensure flexibility, initiative and ensure the right to establish and exercise the rights and obligations to the property of the spouse. Couples will be free to agree on how to divide, use and take responsibility for the property in the way they want and in accordance with the circumstances, life, economy, culture of both of them. It is the convenience of the property regime of the husband and wife according to the agreement. Secondly, the recognition of the property regime of spouses as agreed in national law is in line with the social practices and legal trends of many countries around the world. Currently, it is quite common for Vietnamese citizens to marry foreigners, so we need to have regulations in line with international trend standards, in which the trend of recognizing the property regime of spouses as agreed in the marriage and family laws of the country is recorded in many countries around the world. Therefore, Vietnam's marriage and family law recognizes that the property regime of couples under the agreement is very reasonable and shows the trend of integration, protecting the rights and interests of couples.

Thirdly, the property regime of the husband and wife under the agreement ensures that it brings economic significance to the life of the family. In a market economy, private ownership and freedom of business lead to an increasing sense of autonomy over an individual's assets. The fact that the spouse is comfortable and actively uses the agreed assets to invest, seek business opportunities for the economic development of the individual and at the same time contribute to the general economy of the family is one

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of the great significance of agreeing on the property regime of the couple. In addition, the fact that couples have an agreement with each other before marriage on the money used for investment and business also contributes to mastering the situation and minimizing risks and limiting at least damage to the common good of the family. In addition, on the basis of the written agreement on the property regime of the couple, they will minimize conflicts and court fees when disputed over the division of assets.

Fourthly, the couple's property regime under the agreement is also a solution to minimize cases of marriage not on the basis of pure love but instead the couple targeting each other's property. The fact that the parties can agree on the property regime is also one of the grounds for proving that the parties have a clear understanding of property-related matters during the marriage period, helping to ensure that the marriage is voluntary.

Fifthly, the property regime of spouses under the agreement recognized by law also means that the measure helps to ensure the legitimate rights and interests of the third person when he or she conducts civil transactions with a spouse or both spouses. The spouses had a prior agreement on matters relating to the ownership of the property in writing that ensured that all civil transactions were clear. This allows the third person to make the right decisions when based on the written agreement that has been established to assess the benefits that can be achieved or the risks that will be borne before establishing and conducting civil transactions with the spouse.

Sixthly, the property regime of the couple under the agreement is also meaningful to help the Court when dealing with the determination of assets and the division of assets of the spouses will become convenient and save time and money for the couple. This has great significance in minimizing conflicts and disputes over the division of assets of spouses in divorce cases. On the basis of an agreement that has been made in writing and confirmed by a competent entity, it is an important basis for judges to consider and make the right decision when dealing with requests related to property of husband and wife. 1.4. Generalization of the property regime of spouses in Vietnamese law

throughout historical periods

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1.4.1. Husband and wife's property regime during the feudal period

During the feudal period in Vietnam, there were two large and relatively complete codes of law, namely the Hong Duc Code and the Gia Long Code. In general, the regulations on the property regime between husband and wife during the period were the statutory property regime. This property regime mainly uses local customs or imported Chinese views, upholds the role of the husband and proposes ways to protect the husband's domination in the family.

Under the Le dynasty, the Hong Duc Code was born. Although still heavily influenced by Confucian thought and highly patriarchal, it has made great strides with more national character. In particular, the Hong Duc Code has quite detailed regulations on the property of husband and wife. The Hong Duc Code stipulates that the property regime of husband and wife is the "community of the whole property". The husband and wife's common property includes the husband's own property, inherited from his family (the husband's estate), the wife's own property inherited from the her family (the wife's estate) and the property made by husband and wife during the marriage period. Separate property of husband and wife is the property that each spouse has before marriage, because it is inherited from each person's family. Both spouses have ownership rights to these properties. These assets are jointly managed and exploited for common use. However, separate property is only temporarily pooled together for the husband and wife to manage while the marriage exists. When a person divorces, someone's personal property still belongs to that person and they have the right to take it, except in cases where the wife is guilty of fornication, the estate must be left to her husband (Article 401). Although the Hong Duc Code has made great improvements in the division of separate and common property in the marital relationship between husband and wife, the provisions of this Code are still bound by many distinguishing factors between male and female<small>14</small>.

<small>14Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.23. </small>

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By the law of the Nguyen Dynasty (1802-1945), the time when the Gia Long Code was born, the regulations on the property of husband and wife were somewhat outdated and lacked scientific character compared to the Hong Duc Code. It can be said that in the field of marriage and family law, this Code is a "reversion", according to which, the Code abolishes progressive regulations on the right to own private property of conjugal, then copy the outdated regulations governing family relations of the Qing Code. This causes a loss of equality in property relations between husband and wife. The Nguyen Dynasty's law did not have a separate regulation on the property relationship between husband and wife, so they had to follow common guidelines, meaning that the wife and children were considered to have no separate property and no right to participate in the disposition of the family property. Of course, with such provisions of law, the property regime of husband and wife under the agreement is not mentioned and regulated in the law. In the Gia Long Code, there is a term "marriage letter" — "conspiracy" or "contract", but this term is not understood as an agreement on the property regime of spouses as it is now. The "marriage letter" in Hoang Viet Luat Le is understood as the promise of two families with a son and a daughter about the marriage relationship of the

In summary, the legislators in the feudal period had recorded the property regime of husband and wife, however, the property regime recorded in this period was the statutory property regime. Husband and wife, when getting married, may not agree to differ from the provisions of the Law.

1.4.2. The property regime of spouses during the French colonial period

During the French colonial period (1858-1945), our country was divided into three regions: Bac, Trung and Nam. Corresponding to each region, there is a separate Civil Code which is applied differently: the Bac Ki Civil Code in 1931, the Trung Ki Civil Code in 1936; "Tap dan Luat Gian yeu Nam Ky" in 1883. During this period, the civil law in Vietnam (all three regions) was greatly influenced by the Napoleonic Civil

<small>15 Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.23. </small>

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In Nam Ki, although the "Tap Dan Luat gian yeu Nam Ki" was promulgated first, it did not completely anticipate the property regime of the husband and wife according to the agreement.

Thus, it can be seen that under the French colonial period, in Bac Ki and Trung Ki, a couple before marriage had the right to choose the property regime as agreed. This agreement must comply with the conditions to take effect such as: not contrary to custom, not contrary to the husband's interests, must be made into a deed, issued by the visa chief... However, the fact that the legislators added regulations governing the property regime of husband and wife under the agreement do not arise from the necessity of society's requirements, but only because they are influenced by French civil law. This is also one of the reasons why few couples in this period use the agreed-upon property regime instead of the legal property regime. The provisions of the law on the property regime of spouses according to the agreement are quite simple and compared with the modern Law on Marriage and Family, it can be said that it is not flexible in the issue of spouses not being allowed to amend, supplement the agree on the property regime after marriage. It can be said that this is a proof of the fact that the legislators did not carefully

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consider the necessity of the property regime of husband and wife under the agreement as stipulated in the Trung Ki Civil Codes, Bac Ki Civil Code. In summary, in this period, the fact that the legislators of this period recognized the property regime of husband and wife under the agreement had profound historical significance and value, helping to create a premise for legislative research and comparison of legal regulation of the law, strengthening the awareness of law researchers about the property regime of spouses under agreement.

1.4.3. Husband and wife property regime by agreed between August 1945 and March 24, 1977

1.4.3.1. The property regime of the spouse under the agreement in South Vietnam from August 1945 to March 24, 1977

In the period from the early 50s to the mid 70s (1954-1975), after the Geneva Agreement, our country was divided into two regions with two different political regimes. During this period, the Saigon puppet regime issued three legal documents on marriage and family respectively, namely the 1959 Family Law under the regime of Mr. Ngo Dinh Diem; Decree No. 15/64 dated July 23, 1964 under the Nguyen Khanh regime; Civil Law dated 1972 under Mr. Nguyen Van Thieu's regime. The legal documents of this period have quite specific provisions on the property regime of husband and wife and at the same time, the law has recognized both types of agreemen and statutory property regimes. In particular, all three of these documents stipulate the husband and wife's agreement on the property regime. Specifically as follows:

The 1959 Family Law recognizes the property regime of husband and wife in Articles 45 and 46. The 1959 Family Law mainly clarifies issues related to the property regime of husband and wife according to agreement. Such as the agreement of property regime must be made before marriage and must be recorded in the wedlock. Recording the marriage certificate ensures the marriage is valid with the third party. The agreement will be invalidated when the conditions of content and formality are not satisfied. When the marriage contract is invalidated, the husband and wife's property regime will be the legal property regime. The agreement does not affect the marriage, but the invalidation

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of the marriage will make the agreement also null and void. The law also stipulates that a marriage contract is valid only during the marriage period. The agreement on the husband and wife's property regime can not be amended or supplemented after the parties are married.

Decree No. 15/64 also clearly stipulates the property regime of husband and wife according to the agreement in Articles 50, 51, 52. Decree 15/64 continues to inherit many contents of the 1959 Family Law, including the accept the agreement on the property

In the Civil Code 1972, the property regime of husband and wife is also specified in detail from Article 144 to Article 149 (Book 1, Chapter VI). The 1972 Civil Code stipulates the property regime of husband and wife according to a relatively general agreement and is not as clear as the 1959 Family Law. A agreement of property regime is regulated by this Code with the following basic features: The law only stipulates the statutory property regime when the husband and wife are not engaged in marriage; Husband and wife are free to enter into marriage contracts at will, as long as it is not contrary to public order and fine customs. The law stipulates that a minor spouse who wishes to enter into a marriage must have the support of a qualified person approving the marriage. The spouses must enter into an agreement on the property regime in front of the Notary, and he or she will issue a certificate to the couple with information related to the establishment of agreement. Spouses must hand over a certificate to the civil status officer before the date of marriage – this is similar to the French law. The Civil Code 1972 still does not allow husband and wife to amend and supplement their agreement during the mariage period. Instead, the law specifically stipulates the case of amending and supplementing a agreement in the pre-marital period, however, the amendment and supplementation must be established as an agreement on the property regime. A marriage contract will not be valid for a third party if it is not recorded in the marriage certificate.

<small>16 Vương Ngoc Oánh (2021), Chế độ tài sản của vợ chồng theo thỏa thuận ở Việt Nam, Master's Thesis in Law, School of Law (Hanoi National University), Hanoi, page.22. </small>

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1.4.3.2. The property regime of husband and wife in the law in the North Viet Nam from August 1945 to March 24, 1977

After the successful August Revolution in 1945, our Party and State have not yet issued separate new legal documents in the field of marriage and family. Ordinance No. 90 - SL of October 10, 1945 stipulates that the provisions of the old law are still applied but selectively, according to the principle of not being contrary to the interests of the people and the State. On May 22, 1950, Decree No. 97 was issued to amend a number of regulations in the Civil Law. The matrimonial regulations mentioned in this ordinance are in their infancy<small>17</small>. These ordinances do not deal with the recognition or non-recognition of agreement of the property regime.

After a long period of time until 1957, historical practice required the promulgation of an official legal document on marriage and family, so on December 29, 1959, the Law on Marriage and Family of the year 1959 was issued. This law only applies to the North. Regarding the property regime of husband and wife, this Law does not recognize the property regime of husband and wife as agreed. Article 15 of the Law only stipulates that “Husband and wife have equal rights to own, enjoy and use property acquired before and after marriage”. From this provision, it can be seen that the Law only recognizes one property regime of husband and wife as prescribed by law, in

<small>17Nguyễn Thị Thúy Hồng (2018), Chế độ tài sản của vợ chồng theo thỏa thuận và thực tiễn áp dụng tại Việt Nam, Master's Thesis in Law, Hanoi Law University, Hanoi, page.28. </small>

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addition, there is no other provision that husband and wife have the right to agree on the property regime to apply to their marital relationship. The family in the Northern society at that time was considered to originate from love, from the emotional relationship between husband and wife, and between parents and children. In this order there is no room for the individual element, not admitting the selfishness of any person. The agreed-upon husband and wife property regime is considered to promote the "I" of the husband and wife, expand the freedom to dispose of personal property and can affect the family's life.

1.4.4. The regime of husband and wife is under the agreement since the reunification of the country until now

On April 30, 1975, our country completely liberated the South, the country was officially unified with the name "Socialist Republic of Vietnam". On March 25, 1977, the Government Council issued Resolution 76-CP providing for the uniform

1959 was expanded in scope, from the North to the whole country. At this time, the only property regime that is applied nationally is the statutory property regime. After a long time since the unification of the country, the National Assembly has promulgated three documents of the Law on Marriage and Family, including: Law on Marriage and Family of 1986, 2000, 2014.

During the period when the country was unified until the second half of the 1980s, Vietnam began to enter the process of economic, political and social renewal. In that context, the new Law on Marriage and Family was passed by the National Assembly on December 29, 1986 (effective from January 3, 1987). Although promulgated later, this Law still does not recognize the property regime of husband and wife as agreed and only recognizes the statutory property regime. However, the law on marriage and family at this stage has had a change in the statutory property regime, namely the shift from the whole-property community to the productive community, mean that husband and wife

<small>18 Vương Ngoc Oánh (2021), Chế độ tài sản của vợ chồng theo thỏa thuận ở Việt Nam, Master's Thesis in Law, School of Law (Hanoi National University), Hanoi, page 40. </small>

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created during marriage (except for property inherited or given separately) is considered joint property of husband and wife. Property that is separately inherited, given separately or property formed before marriage is the separate property of husband and wife. The Marriage and Family Law does not recognize the agreed-upon property regime, but allows husband and wife to agree to divide common property during the marriage period.

With the rapid economic development of Vietnam in the 1990s, the social structure as well as family relationships changed drastically, requiring appropriate changes in the provisions of the law. Before this requirement, the legislators promulgated the Law on Marriage and Family in 2000. This law continues to recognize the statutory property regime as the sole property regime of husband and wife during the marriage, and there are more specific and detailed regulations on joint ownership of husband and wife. Legislators of this period did not have any provisions allowing husband and wife to make an agreement on the regime of property, but the legislators did allow spouses to agree on property during the marriage period in certain cases.

The common property division agreement is an amended and supplemented institution in the 2000 Law on Marriage and Family and the guiding document of Decree 70/2001/ND-CP on the basis of the 1986 Law on Marriage and Family. Spouses may agree with each other to divide common property during the marriage to serve legitimate reasons such as to invest in separate businesses, to perform civil obligations or to perform other legitimate reasons. When dividing the common property of husband and wife, the yields and profits arising from the divided property, income from labor, production and business activities and other lawful incomes belongs to each party after the division of the property. The law allows husband and wife to agree that the above properties are common property of the family. Division of common property during the marriage is a measure of redefining the actual structure of the assets of the spouses during the marriage period. This behavior is allowed to be performed within the framework of the law. “The

<small>19 Article 16 of the Marriage and Family Act of 1986 stipulates: "For property that the spouse has before marriage, the property is inherited separately or given separately during the marriage period, the person with such assets has the right to enter or not to enter into the common property of the spouse.” </small>

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systematic substitution of rules on the composition of property blocks, with specific arrangements, can lead to the formation of particular property regimes not intended by law, and it also means that by way of agreement, husband and wife can completely eliminate the rules of common property regime and legally outlaw their property

of husband and wife under agreement when the law allows husband and wife to agree on issues related to property relations.

After nearly 15 years of taking effect and applying, the Law on Marriage and Family 2000 has revealed limitations, inadequacies and is no longer suitable with the cultural, economic and social situation of Vietnam during the new period. Therefore, the State has promulgated the Law on Marriage and Family 2014. The new law recognizes the property regime of husband and wife according to agreement. This issue is specifically noted in Clause 1, Article 28 of the Law on Marriage and Family 2014: “Husband and wife have the right to choose to apply the statutory or agreed property regime.”

The promulgation of the Law on Marriage and Family has shown that the legislators have had an innovative mindset and considered the necessity of the property regime according to the agreement of husband and wife to the economic and cultural, society situation of the country. The new period of marriage and family law has prominent new regulations, creating a legal corridor to regulate issues related to the property regime of husband and wife under agreement.

1.5. The regime of conjugal property as agreed in the law of some nations in the world

The property regime of spouses under the agreement is no longer an unfamiliar issue for the marriage and family laws of some countries around the world. There have been many countries in the world such as France, Thailand, China, Japan,... have acknowledged the property regime of the spouses under the agreement. The study of the

<small>20 Nguyễn Thị Vân Thư (2016), Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hôn nhân và gia đình Việt Nam, Graduation thesis, Ho Chi Minh City University of Law, Ho Chi Minh, page.38. </small>

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legal provisions on the property regime of spouses as agreed upon by the laws of a number of countries in the world has great significance and role in raising awareness both theoretically and practically for this type of property regime.

1.5.1. The regime of property of husband and wife by agreement in the French Civil Code

In the Civil Code of France, the provisions of the law relating to the issue of the property regime of spouses under the agreement are not recorded in the writing section on the marriage of spouses but are separately stipulated in The 3rd Book V on the establishment of property rights<small>21</small>. According to the provisions of this law, the law provides for both agreement of the property regime (mariage contract) and property regimes that can be applied between husband and wife.

a) General issues of property regime agreed upon in the French Civil Law

First of all, it must be mentioned that the French Civil Law has recognized the property regime of husband and wife in parallel with the legal property regime, specifically stated in Article 1387 of the French Civil Code: “Legislation regulates conjugal relations, with respect to property, only in the absence of special agreements that the spouses may enter into as they deem proper, provided they are not contrary to good morals and to the following provisions". This provision recognizes the existence of the property regime of husband and wife by agreement indirectly. It can be seen that the above provisions under French civil law have created freedom for husband and wife in choosing the right property regime for them before marriage. However, legislators have also set limits to limit the freedom of agreement of couples to protect the rights of other subjects in society. That limit is the agreement is not contrary to ethics or “other provisions of the law” – this is an open rule for the law to recognize more cases where the agreement must not be violated. These regulations limit the freedom to agree on the

<small>21PGS.TS. Nguyễn Ngọc Điện, TS. Đoàn Thị Phương Diệp (2016), "Chế độ tài sản thỏa thuận tỏng pháp luật một số nước và đề xuất cho Việt Nam", Journal of Legislative Research, No. 15 (319), August 2016. </small>

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property regime of husband and wife for the purpose of protecting and maintaining public order in the family<small>22</small>.

b) The form of agreement and procedures of the agreed asset regime

In form: The marriage contract must be drafted in notarized in writing by the notary with the presence and consent of all parties to the contract or their authorized person.

Procedural: Agreements on the property of the spouses must be made before the wedding ceremony and only arise from the date of the wedding. Any agreement on property in a marriage must be written before the notary with the presence and consent of all parties or their authorized persons. The spouses must submit a certificate of making an agreement on the property regime of the spouse to the civil status officer before marriage. The fact that the agreement of the spouse is written in the marriage certificate (marriage certificate), otherwise, in the transaction with the third person, the property

The special feature in French law is that the marriage certificate of husband and wife in France has the content of recognizing the type of property regime of the husband and wife, this is the basis for publicizing the status of the property regime of the couple, because in some civil transactions of the spouses with other parties it is necessary to prove the marital status of the couple but must be assigned. Submitting the marriage certificate, the other party can fully grasp the type of property regime that this couple chooses without the need to voluntarily declare the information of the spouse in this regard.

c) Validity of the agreement on the property regime of the spouses

Basically, the marriage contract will be in force depending on the validity of the marital relationship, in other words, if there is no marital relationship, the marriage contract is also not valid. This is not specifically noted but is understood indirectly through the provisions of Article 1395 of the French Penal Code: "The marriage contract

<small>22 PGS.TS. Nguyễn Ngọc Điện, TS. Đoàn Thị Phương Diệp (2016), "Chế độ tài sản thỏa thuận tỏng pháp luật một số nước và đề xuất cho Việt Nam", Journal of Legislative Research, No. 15 (319), August 2016. </small>

<small>23 Article 1394 of the French Civil Code. </small>

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must be drafted before marriage and shall not take effect until the date of marriage". On the basis of a combination of the two provisions of Articles 1394 and 1395, two cases of marriage-marriage contracts cannot be valid: firstly, if at the time of marriage or at the time of procedure the spouses fail to provide evidence (marriage contract) to civil status officials, it is considered that the parties have chosen the property regime by law. Second, the marriage contract will not be valid if the spouse is not married, as this is a special agreement that can only be applied to the special type of subject in the marriage and family relationship as the wife and husband.

The French Civil Code also intends to add another case of the form of the contract which the parties must note that the marriage contract may also be annulled if the adult is in a state of guardianship or administration whose participation in the contract is absent from the presence and consent of the guardian or assistant (or others in accordance with

In order for the agreement of the spouses to take effect, the contents of the agreement must also ensure that there are no violations in the prohibited cases prescribed by the Law. The spouse is free to agree but the contract of that agreement shall also be invalid if it exceeds the limits of their rights and obligations arising from the marriage; on the obligations and rights of parents and children, on management in accordance with law; about guardianship, as well as on the order of inheritance. The legal consequence

d) The content of the agreement on the property regime of the spouses

The essence of a marriage contract under French law is the choice of the common or separate property regime. French law proactively proposes property regimes for husband and wife to choose when entering into a marriage, which makes the agreement easier, however, husband and wife can completely agree differently. The classification

<small>24 Article 1399 of the French Civil Code </small>

<small>25Bùi Minh Hồng (2010), Chế độ tài sản theo thỏa thuận của vợ chồng liên hệ từ pháp luật nước ngoài đến pháp luật Việt Nam, Civil law network, 2010, accessed on 4/5/2022. </small>

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Movable property and property community system: is the property regime that recognizes the common property that will include the movable property that each party has when they get married and the properties that the husband and wife create during the marriage. However, movable property which is considered separate property due to its nature such as pants, clothes, jewelry, etc., still belongs to the separate property of each party. The separate debt of husband and wife before marriage is a joint debt in proportion

Separation of property: is a property regime in which husband and wife agree that all their property is separate property. Each person retains the right to manage, use and freely dispose of his or her own property. There is no common property between husband and wife. Debts that husband and wife have to pay include separate debts of each party

The mode of contribution to the assets: during the marriage, this property system is operated as a separate and reproduced regime, but when the property system is dissolved, the assets will be settled as a community system. That is, each party will receive half of the value of the assets created in the other's assets; This value is determined by valuing the initial and final assets<small>29</small>

<small>26 Nguyễn Thị Vân Thư (2016), Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hơn nhân và gia đình Việt Nam, Graduation thesis, Ho Chi Minh City University of Law, Ho Chi Minh, page.27. </small>

<small>27 Article 1498 of the French Civil Code. </small>

<small>28 Nguyễn Thị Vân Thư (2016), Chế độ tài sản của vợ chồng theo thoả thuận trong pháp luật hôn nhân và gia đình Việt Nam, Graduation thesis, Ho Chi Minh City University of Law, Ho Chi Minh, page.28. </small>

<small>29 Ngô Thị Anh Vân (2016), Chế độ tài sản của vợ chồng theo thỏa thuận trong pháp luật hôn nhân và gia đình Việt Nam, Master's Thesis in Law, Ho Chi Minh City University of Law, Ho Chi Minh City, page 34. </small>

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French law also allows husband and wife to change the content of the agreement on the property regime of the spouses after they are married. Specifically, after two years, husband and wife can agree to amend or even completely change the property regime by notarized deed for the benefit of the family, which will be approved by the Court of residence. To be valid, the agreement must contain the content of liquidation of the pre-existing property regime in case of necessity. This change must be notified to the adult children and creditors, each of whom may object within 3 months. If there is an objection, the deed of agreement will have to be approved by the Court to take effect. In case the couple has minor children, the Court's approval is a valid request for certificate. The change is effective between the spouses at the time of notarization or at the time of approval by the Court. In relationships with third parties, the change takes effect three months from the time recorded in the marriage registration. The change is still valid for a third party if in the civil transaction agreements the husband and wife have indicated

1.5.2. The regime of property of conjugal by agreement in the Thailand Civil and Trade Code

In most Southeast Asian countries, it can be seen that Thailand is the country most receptive to factors imported from abroad, including the introduction of laws. Accordingly, Thailand's law on marriage and family is also influenced by French law

<small>30 Article 1397 of the French Civil Code. </small>

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b) The form of the agreement and the procedure of the property regime as agreed In terms of the form of the agreement, Thailand's marriage and family law stipulates that the marriage - agreement on the property regime of the couple must be

Regarding the procedures for recognizing the agreement of husband and wife on the property regime, after the agreement on the property regime is made in writing and signed by both husband and wife and the witness, this agreement must be filed in marriage registration agency at the time of marriage registration.

<small>31 Nguyễn Thị Thu Thủy (2015), Chế độ tài sản của vợ chồng theo thỏa thuận theo luật Hôn nhân và gia đình năm 2014, Master's Thesis in Law, Hanoi Law University, Hanoi, page.34. </small>

<small>32 Article 1466 of the Civil and Commercial Code of Thailand: The ante-nuptial agreement is void if not entered in the Marriage Register at the time of marriage registration terms of the ante-nuptial; or if not made in writing and signed by both spouses and by at least two witnesses and entered in the Marriage Register at the time of marriage registration stating that the ante-nuptial is thereto annexed. </small>

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32

As can be seen, Thai law also requires husband and wife to make an agreement on the property regime before the marriage period and to submit this agreement to the marriage registration office at the time of marriage for legal approval.

c) Validity of the agreement on the property regime of the spouses

The issue of the validity of the agreement on the husband and wife's property regime is very specific and very important in Thai civil law. Accordingly, in order for an agreement to be legally valid, the content and form of the agreement must comply with the provisions of law.

In terms of content, the agreement of conjugal must ensure that it is made with the purpose of choosing the type of property regime or in other words, determining the rules to govern issues related to the property ownership relationship. Thai law sets limits on which a husband and wife's agreement cannot be violated, that is, it must not be contrary to public order or good morals of the society, or the content of the agreement must not be selected foreign law to governing the property relationship of husband and wife. If spouses violate these prohibitions, their agreement will be void<small>33</small>.

In terms of form, the husband and wife's agreement must satisfy certain conditions to be valid. The husband and wife's agreement, although satisfied in terms of content, may also be invalidated if it falls into the following cases<small>34</small>:

(1) The agreement is not presented to the marriage registrar at the time of marriage registration;

(2) Not made in writing, signed by both spouses and at least two witnesses.

(3) Not included in the marriage registration at the time of marriage registration as an addendum to the marriage registration.

Accordingly, just without one of these three factors, the law will not recognize the agreement on the property regime of spouses under the agreement, this issue is noted in Article 1466 of the Civil and Trade Code of Thailand. The Law has been in place for

<small>33 Article 1465 of the Civil and Commercial Code of Thailand. </small>

<small>34 Article 1466 of the Civil and Commercial Code of Thailand. </small>

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d) Amending and supplementing the agreement on the property regime of spouses The matter of amending and supplementing the agreement on the husband and wife's property regime is regulated by the Thai Civil and Commercial Code in Article 1467. Thai law does not allow the marriage contract to be modified after the marriage except with the approval of a competent court. When there is a final decision on the modification or annulment of the marriage, the court must notify the place of marriage registration about the matter.<small>36</small>

Thai law does not allow husband and wife to modify the agreement on the property regime freely, but instead places it within certain limits and control. The competent authority to control this matter is the Court. As is known, a property regime must be applied for a long time, even until the end of the marriage, this agreement concerns not only the interests of the couple but also the common good of the family, the interests of a third party, the interests of the community and society. Therefore, if the husband and wife are free to modify the agreement without a control mechanism, it will affect the interests of the above subjects. An annulment or a controlled replacement of a marriage by the Court in cases where the provisions of the Law are applicable to the entire prenuptial agreement of the spouses. Further research can show that the marriage and family law of Thailand does not impose the obligation to notify the spouses of the

<small>35Siamlegalthailand (2022), Thai Prenuptial Pointers, pointers/, accessed on 4/4/2022. </small>

<small> Section 1467: After marriage the ante-nuptial agreement cannot be altered except by authorization of the Court. When there is final order of the Court to effect the alteration of cancellation of the ante-nuptial agreement, the Court shall notify the Marriage Registrar of the matter in order to have it entered in the Marriage Register. </small>

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