In response to this question, Lawyer Phan Thuy Khanh, Deputy Head of Phong & Partners Law Firm, stated that in practice, divorce cases involving property disputes are becoming increasingly common in Vietnam, leading to prolonged resolution processes and significantly affecting the parties involved.

As a result, many couples today are more cautious about financial matters before entering into marriage. With the mindset of "better safe than sorry," they proactively clarify and agree upon their property relations before registering the marriage — a process known as establishing a marital property regime agreement — in order to minimize conflicts and protect individual interests. So, what does the law stipulate regarding this issue?

First, what is a marital property regime agreement?

According to clause 1, Article 28 of the 2014 Law on Marriage and Family, in addition to the statutory property regime, spouses have the right to choose to apply a property regime based on mutual agreement. This right allows the spouses to reach a consensus on how to establish and exercise their rights and obligations to their assets during the marriage, provided that such agreement does not violate the provisions of law. This regulation reflects the principle of voluntary marriage and respects the parties’ autonomy in establishing their marital relationship.

According to Article 48 of the 2014 Law on Marriage and Family, an agreement on the matrimonial property regime may include the following basic contents:

• Property between husband and wife may include both common property and separate property of each spouse;
• There is no separate property between the husband and wife; all assets acquired by either spouse before or during the marriage shall be considered joint property.
• There is no joint property between the husband and wife; all assets acquired by either spouse before or during the marriage shall be the separate property of the person who acquired them.
• As determined based on other specific agreements between the spouses.

For matters that are not agreed upon by the spouses or are unclearly defined in the agreement shall be resolved in accordance with Articles 29, 30, 31, and 32 of the 2014 Law on Marriage and Family and the corresponding provisions of the statutory property regime.

Accordingly, Ms. Lan and her fiancé have the legal right to sign an agreement establishing their marital property regime and this agreement is fully recognized by law, provided that both its content and form comply with the legal requirements outlined below.

Second, conditions for the validity of a marital property regime agreement

In principle, an agreement establishing the property regime between husband and wife is considered a type of civil transaction. Therefore, for such agreement to be legally effective, it must comply with the conditions for validity as stipulated by the Civil Code and the Law on Marriage and Family.

Specifically, Article 117 of the 2015 Civil Code provides:

“Article 117. Conditions for the validity of a civil transaction

1. A civil transaction shall be valid when the following conditions are met:
a) The parties to the transaction have the legal capacity, civil act capacity appropriate to the transaction being established;
b) The transaction is entered into voluntarily by the parties;
c) The purpose and content of the transaction are not contrary to law or social ethics.

2. The form of the civil transaction is a condition for its validity in cases where the law requires it.”

In addition, the 2014 Law on Marriage and Family provides:

“Article 47. Agreement on the matrimonial property regime
In cases where the couple chooses to apply a property regime by agreement, such agreement must be made prior to the marriage, in the form of a notarized or certified written document. The agreed property regime shall take effect from the date of marriage registration.”

“Article 50. Invalidity of agreements on the matrimonial property regime

1. An agreement on the matrimonial property regime shall be declared invalid by the Court in any of the following cases:
a) Failure to satisfy the conditions for validity of a transaction under the Civil Code and other relevant laws;
b) Violation of one of the provisions of Articles 29, 30, 31, and 32 of this Law;
c) The content of the agreement seriously infringes upon the right to maintenance, the right of inheritance, other lawful rights and interests of parents, children, or other family members.

2. The Supreme People’s Court shall take the lead in coordinating with the Supreme People’s Procuracy and the Ministry of Justice to provide guidance on clause 1 of this Article.”

Accordingly, a prenuptial property agreement on the matrimonial property regime must be made prior to the marriage registration, comply with conditions regarding the legal capacity of the signatories, have a lawful purpose and content, be notarized or certified, and not fall into any cases of invalidity as prescribed by law. Once these requirements are met, the agreement becomes legally effective from the date of marriage registration.

However, it is important to note that, at present, inconsistencies still exist in the notarization and certification practices for such agreements across different notary offices - particularly when the agreement includes real estate assets. This issue largely stems from ambiguities in the current legal framework, which allows each notarial practice organization to interpret and handle these matters differently.

Specifically, the 2014 Law on Notarization provides:

“Article 42. Scope of notarization of contracts and transactions involving real estate
Notaries of a notarial practice organization may only notarize contracts and transactions involving real estate within the province or centrally-run city where the notarial practice organization is headquartered, except for the notarization of wills, documents renouncing inheritance of real estate, and powers of attorney related to the exercise of rights over real estate.”

This provision is currently subject to two main interpretations as follows:

• The first interpretation holds that, except for wills, documents renouncing inheritance, and powers of attorney, all other contracts and transactions involving real estate (including prenuptial property agreements that refer to real estate assets) must comply with territorial notarization requirements. Under this view, the notarization of such an agreement must be carried out by a notarial practice organization located in the province or city where the real estate is situated.
• The second interpretation maintains that only contracts and transactions in which real estate is the subject matter are subject to territorial notarization requirements, such as purchase, sale, transfer, donation, mortgage, or lease... In contrast, a prenuptial property agreement that includes real estate is primarily concerned with the property relationship between husband and wife, not with the real estate itself as the object of the transaction. Therefore, this interpretation allows such agreements to be notarized by any notarial practice organization, regardless of the property's location.

Therefore, at present, this lack of uniformity may cause certain difficulties for Ms. Lan when carrying out the notarization of a prenuptial property agreement that includes real estate located in multiple localities. This is because whether the agreement is accepted or refused for notarization or certification may depend on the individual interpretation of each notary at different notarial practice organizations.

However, to address this issue, Article 44 of the 2024 Law on Notarization (effective from July 1, 2025) explicitly lists agreements on the matrimonial property regime involving real estate as an exception to the territorial notarization requirement. This means that, starting from July 1, 2025, Ms. Lan will be able to have such an agreement notarized at any notarial practice organization, regardless of the location of the real estate involved.

Third, can the content of the agreement be amended after marriage?

During the course of the marriage, the spouses have the right to agree on amending or supplementing part or all of the contents of the previously established matrimonial property regime. This amended or supplemented agreement must be made in writing and notarized or certified in accordance with the law.

The amended or supplemented agreement will become legally effective from the date it is notarized or certified. Unless otherwise agreed, the property rights and obligations that arose before the effective date of the amended agreement shall remain legally valid.

In addition, to protect the rights of third parties, the law requires the spouses to notify them of the establishment or amendment, supplement of their prenuptial property agreement, pursuant to Article 49 of the 2014 Law on Marriage and Family, as guided by Articles 17 and 18 of Decree No. 126/2014/NĐ-CP.

Accordingly, Ms. Lan may still change the content of the previously established prenuptial property agreement after marriage, provided that both spouses reach mutual consent and the amended content complies with legal regulations. However, it is important to note that such amendments must also be made in writing and be notarized or certified to be legally effective.