Question: During our marriage, my wife and I wish to establish an agreement to divide our marital property to facilitate more efficient management and use. I would like to ask whether, under the law, this agreement is required to be notarized.
Answer:
1. Notarization Regulations for Agreements on the Division of Marital Property During Marriage
According to the information provided by you, you and your wife currently wish to draw up an agreement to divide the common property of the spouses during the marriage. First, both parties must clearly identify the list of marital assets subject to division. According to Article 105 of the 2015 Civil Code, the assets shall be stipulated as follows:
- “1. Property comprises objects, money, valuable papers and property rights.
- 2. Property includes immovable property and movable property. Immovable property and movable property may be existing property or off-plan property.”
Besides, according to Clauses 1 and 2, Article 38 of the 2014 Law on Marriage and Family on the division of common property during the marriage, it is stipulated as follows:
- “1. During the marriage period, except the case prescribed in Article 42 of this Law, husband and wife have the right to reach agreement on division of part or whole of common property. If they fail to reach agreement, they have the right to request a court to settle it.
- 2. An agreement on common property division shall be made in writing. This agreement shall be notarized at the request of husband and wife or as prescribed by law.”
Accordingly, under the above provisions, during the marriage, the spouses have the right to agree on the division of part or all of their common property. However, such agreement must be made in writing.
Note: Notarization is only mandatory when required by law or upon the spouses’ request. Regarding real estate, Clause 3, Article 27 of the 2024 Land Law, the notarization and certification are regulated as follows:
- “3. The notarization and certification of contracts and documents on the exercise of rights of land users shall be conducted as follows:
- a) Contracts on conveyance, donation, mortgage or capital contribution with LURs or rights to use land and property thereon must be notarized or certified, except for the case prescribed at point b of this clause;
- b) Contracts on lease or sublease of LURs or rights to use land and property thereon, a contracts on exchange of agricultural LURs; contracts on conveyance and capital contribution with LURs or rights to use land and property thereon and property affixed to the land in which one party or all parties involved in transactions is/are a real estate business organization(s) must be notarized or certified at the request of the parties;
- c) Documents on inheritance of LURs or rights to use land and property thereon must be notarized or certified according to civil law;
- d) The notarization and certification shall comply with laws on notarization and certification.” With respect to real estate, the law does not require notarization of an agreement on the division of common property.
Note: Although the law does not mandate it, with respect to real estate, you and your spouse are advised to have the agreement on the division of common property notarized in order to avoid legal risks.
Consultation: marriage and family law services
