Joint property but husband and mistress mortgaged, is that okay?

Reply:

1. Separation and common property of spouses during marriage:

Vietnamese law does not have any provisions on separation. Even though a couple no longer lives together and their relationship is in turmoil, they are still legally recognized as husband and wife.

Therefore, spouses still have full rights and obligations as prescribed in the 2014 Law on Marriage and Family, including rights and obligations regarding property.

According to the provisions of Clause 1, Article 33 of the 2014 Law on Marriage and Family:

- The common property of a married couple includes property created by the husband and wife, income from labor, production and business activities, profits and profits arising from separate property and other legal income during the marriage, except for the cases specified in Clause 1, Article 40 of this Law; property that the husband and wife jointly inherit or are jointly given, and other property that the husband and wife agree is common property.

- The land use rights that the husband and wife acquire after marriage are the common property of the husband and wife, except in cases where the husband or wife inherits them separately, is given them separately, or acquires them through transactions using separate property.

- The common property of the spouses is jointly owned and used to ensure the needs of the family and to fulfill the common obligations of the spouses.

In case there is no basis to prove that the property that the husband and wife are disputing is the separate property of each party, that property is considered common property.

As you said, you and your husband bought a car under their names. This car was purchased during the marriage. If there is no evidence to prove that it is separate property, then this is the joint property of you and your husband during the marriage.

This property is jointly owned by you and your spouse and is used to ensure the needs of the family and to fulfill the common obligations of the couple.

2. Mortgage assets to finance companies:

According to the provisions of Clause 1, Article 317 of the 2015 Civil Code, amended and supplemented in 2017: Mortgaging property is when one party (hereinafter referred to as the mortgagor) uses property owned by him/her to secure the performance of obligations and does not hand over the property to the other party (hereinafter referred to as the mortgagee).

As you said, your husband and another woman signed the mortgage contract but did not clearly state your husband's role in this contract, so there will be 2 cases:

* Your husband and another woman signed a mortgage to borrow money.

* Your husband used the mortgaged property to secure a loan for the other woman.

In both cases above, the mortgage contract must be signed by the owner, you and your husband, to be legally valid.

If for some reason you cannot sign, you can authorize someone else. Therefore, this mortgage contract is invalid according to the provisions of Article 122 and Clause 1, Article 117 of the 2015 Civil Code, amended and supplemented in 2017.