In the process of resolving divorce cases with foreign elements, the issue of determining the obligation to repay debts is always a complex matter and easily gives rise to disputes. The determination of whether a debt is a joint or separate responsibility not only directly affects the rights of the spouses but also relates to the rights of the lender and third parties. Vietnamese law has established specific principles to ensure fairness, transparency and the protection of the legitimate interests of the parties while maintaining stability in civil relations with foreign elements. This article will analyze the legal basis, the criteria for determining joint and separate debts, and the role of agreements between the parties in resolving the obligation to repay debts when divorce involves foreign elements.

1. Legal framework for determining the obligation to repay debts upon divorce with foreign elements

1.1. Definition and scope of regulation

Marriage and family relations with foreign elements are defined by the Law on Marriage and Family 2014 as relations in which at least one party is a foreigner or a Vietnamese residing abroad, or relations between Vietnamese citizens with each other but arising, changing or terminating under foreign law, related to property or personnel abroad.

Vietnamese law regulates the obligation to repay debts in marriages with foreign elements in the spirit of protecting the lawful rights and interests of the parties concerned and ensuring harmony with international treaties to which the State is a member. In cases where there is no applicable international treaty or no reference to foreign law, the Law on Marriage and Family of Vietnam is applied with priority.

1.2. Principles of applying the law in marriage relations with foreign elements

In principle, disputes over property obligations and debts in marriages with foreign elements are resolved under the Law on Marriage and Family of Vietnam, except where international treaties or Vietnamese law refer to the application of foreign law that does not contravene the fundamental principles of Vietnamese law. If foreign law refers back to Vietnamese law, then Vietnamese law shall still apply.

In relations arising from marriage, divorce, establishment and division of property obligations with foreigners, the principles of equality, voluntary agreement and respect for the right of disposition of the parties must be ensured. However, specific obligations are still primarily determined on the basis of Vietnamese law when disputes are resolved in Vietnamese courts.

2. Classification of joint debts and separate debts

2.1. Concept and classification of joint debts

According to Article 37 of the Law on Marriage and Family 2014, the joint property obligations of husband and wife include:

. Obligations arising from transactions jointly agreed upon by husband and wife or obligations for compensation jointly borne under the law.

. Obligations performed by either spouse to meet the essential needs of the family.

. Obligations arising from the possession, use or disposition of joint property.

. Obligations arising from the use of separate property to maintain or develop the joint property or to create the main source of income for the family.

. Obligations to compensate for damage caused by children as prescribed by the Civil Code.

. Other obligations as prescribed by relevant law.

Thus, joint debts are debts established on the basis of joint agreement, serving the interests of the family, or common legal or social responsibilities of husband and wife, except where determined to be separate debts.

2.2. Separate debts during marriage

According to Article 45 of the Law on Marriage and Family 2014, separate property obligations include:

• Obligations of each party existing before marriage.
• Obligations arising from the possession, use or disposition of separate property (except in cases where the preservation or repair of separate property is related to joint property).
• Obligations arising from transactions established by one party not for the needs of the family.
• Obligations to compensate for damage arising from violations of law by either spouse.

Debts or financial obligations arising to meet personal needs, to serve private consumption, independent business activities or formed before marriage are considered separate obligations of the person who directly carried out the transaction. The other party in the marriage is not jointly responsible for such debts because they do not serve the common interests of the family.

When resolving disputes over financial obligations, the Court must comprehensively consider the following factors to determine the nature of the debt:

• Purpose of the loan: If the loan was used for common living, child care or maintaining family life, it may be considered a joint debt. Conversely, if the loan only served personal needs such as private purchases, independent business investment or expenses unrelated to family interests, it is a separate debt.
• Time of debt formation: A debt formed before marriage is in principle the personal responsibility of the borrower, except where there is another agreement proven to be lawful.
• The subject using the loan: This is the basis for determining the obligation regarding the loan. If the entire amount was used for the personal purposes of one party, the repayment obligation belongs only to that party. If the amount was used for the family, both parties must be jointly responsible.

In addition, accompanying evidence such as loan contracts, payment documents, agreements between the parties or statements from the lender are important bases for the court to evaluate. Proving the purpose and process of using the loan is decisive in determining financial obligations upon divorce.

The determination of joint or separate debts is not only based on the form of the borrower’s name but must be comprehensively considered based on purpose, time, user and supporting evidence. Only when the conditions show that the loan served common interests can it be considered a joint obligation, otherwise it will be the separate responsibility of the borrower.

3. The issue of debts borrowed in the name of one party

In practice, many disputes arise when debts are borrowed in the name of only one party during marriage. According to the Law on Marriage and Family 2014, not all loans in the name of one party are separate debts. Such loans may still be determined as joint debts if there is evidence that they served the common and essential needs of the family or if there was agreement of both parties or consent expressed through actions, intentions or actual benefits enjoyed by the family from the loan.

Article 27 of the Law on Marriage and Family 2014 provides for the joint liability of husband and wife for transactions carried out by one party, provided that they are consistent with the provisions on representation or serve essential purposes. It should be noted that the lender’s right to claim repayment of the loan given to one party does not necessarily depend on whether the other party knew, but essentially depends on the purpose of the loan and the family’s benefit from it.

Judicial practice also shows caution, not automatically considering all debts in the name of one party during marriage as joint debts. It must be based on transaction evidence, evidence of agreement, purpose of use of the money, family benefit, financial records or other indirect evidence.

Some typical judgments only recognize debts borrowed in the name of one party as obligations of both spouses when there is sufficient evidence proving that the loan served the family and children. If there is no supporting documentation, the debt is considered a separate obligation.

4. Debts serving the essential needs of the family

4.1. Definition of essential family needs

The Law on Marriage and Family defines “essential family needs” as normal living needs for food, clothing, housing, education, medical examination and treatment and other ordinary needs indispensable for the life of individuals and the family. This includes expenses for housing, food, children, healthcare and daily living.

4.2. Obligation to repay debts arising from transactions serving essential needs

According to Articles 30 and 37 of the Law on Marriage and Family 2014, loans to meet the essential needs of the family, regardless of which party carried them out, are joint obligations of husband and wife. Both spouses are jointly responsible for such debts to the lender, and even after divorce the obligation remains valid and may be enforced if not voluntarily performed.

Even in cases where the other party did not know about the loan, if the borrowing party can prove that the money was used for essential needs, the other party must still be jointly responsible for repayment. This also protects the interests of the lender, preventing the parties from using divorce procedures to evade obligations.

5. Debts serving personal purposes

5.1. Determining separate obligations for debts serving personal purposes

The Law on Marriage and Family 2014 in Article 45 clearly provides that loans serving personal purposes, not for the common interests of the family, are separate obligations of the borrowing party. For example, loans for gambling, personal investment, consumption for personal hobbies or business unrelated to family interests are the sole responsibility of one party.

Separate debts also include debts arising before marriage, debts from violations of law, debts from the use of separate property unrelated to maintaining joint property or creating the main source of family income. If the other party did not know, did not benefit, had no agreement and did not enjoy the results of the loan, the repayment obligation cannot be imposed on both.

5.2. Obligation of one party when the debt serves personal purposes

If determined to be a separate debt, after divorce the party who carried out the borrowing transaction must bear the responsibility of repayment to the lender, and the property divided upon divorce will not be used to secure that debt (except where there is another agreement between the parties or a judgment on division of joint property that has been included in the debt).

Judicial practice shows that many borrowers deliberately declare that the loan was for the family in order to avoid personal responsibility. The court will consider actual circumstances, documents proving the purpose of the money (receipts, invoices, bank statements), statements of the parties and evidence from third parties. If there is doubt, the obligation to provide evidence lies with the party who has the obligation to repay the debt or the party who refuses such obligation.

6. The role of agreements between the parties and evidence regarding the purpose of the loan

6.1. The role of loan agreements

According to the provisions of the Law on Marriage and Family 2014, the parties have the right to agree on the property regime, the responsibility for repaying joint or separate debts either during the marriage or before the marriage (prenuptial agreement). Such agreement must be made in writing and notarized or certified in order to have binding legal effect and the Court is obliged to recognize it when adjudicating.

In cases where the parties do not have a clear agreement, the provisions of the law shall apply to determine the obligation, taking into account the will, actions of each party and the available evidence.

6.2. Requirements for evidence proving the purpose of the loan

The jurisdiction of the Court and the determination of the obligation to repay debts require establishing the true nature of the loan transaction:

• The party requesting the division of obligations or the creditor must provide the loan contract, transfer documents, expense invoices, receipts, bank statements or commitments, confirmation letters, statements of the parties concerned.
• The party opposing the recognition of joint liability must provide evidence that the loan served personal purposes, not for the benefit of the family, that no benefit was received or that the loan was unknown and not consented to.

The Court will evaluate the evidence objectively, fully and reasonably in order to determine the repayment obligation in accordance with the actual nature and the provisions of the law.

6.3. The effect of prenuptial property agreements and pre-divorce agreements

If before marriage the parties signed a contract establishing a separate property regime, clearly stipulating which debts are separate and which are joint responsibilities, the Court shall resolve the matter based on that document. Property agreements during marriage (postnuptial agreements) are treated similarly, provided that they do not violate prohibitions of the law or contravene social morality, do not deprive third parties of their rights, especially the rights of minor children, persons lacking legal capacity, or violate principles concerning State property.

If the agreement is unclear or incomplete, the law shall be applied flexibly, giving priority to protecting vulnerable parties, children and the rights of bona fide third parties concerned.

7. The principle of equality in property obligations

7.1. The principle of equality in the property of husband and wife

The Law on Marriage and Family 2014 establishes the principle that “husband and wife are equal to each other in rights and obligations in the creation, possession, use and disposition of joint property” (Article 29). There is no distinction between domestic labor and income-generating labor. All decisions related to joint property obligations must respect equality in legal status, the right of disposition and the obligation of performance, especially when dividing joint debts or determining responsibility for disputed debts.

This principle is also the basis for ensuring fairness when dividing repayment obligations after divorce, taking into account personal circumstances, contributions, legitimate rights and the fault of each party in violating obligations to the family.

7.2. Application of the principle of equality in marriages with foreign elements

In marriages with foreign elements, the principle of equality is guaranteed to be applied in the same way as between two Vietnamese citizens except where there are priorities or specific provisions stipulated by law or international treaties or by agreement of the parties. Foreigners in marriage relations with Vietnamese citizens enjoy full rights and perform full obligations regarding property as Vietnamese citizens, provided that they comply with the requirements of Vietnamese law and do not contravene fundamental principles or public policy.

Conclusion

The determination of the obligation to repay debts in divorce cases with foreign elements requires careful analysis based on the provisions of the Law on Marriage and Family 2014 and related documents. The fundamental principle is that only loans serving the common interests of the family are considered joint obligations, while loans serving personal needs, arising before marriage or serving separate purposes are the separate responsibility of the borrower. This approach ensures fairness, prevents one party from bearing obligations unrelated to them and at the same time protects the legitimate rights of the lender.

In practice, the determination of joint or separate debts is not only based on the form of the borrower’s name but must be comprehensively considered based on the purpose of use, the time of formation, the beneficiary and the accompanying evidence. The principle of equality between husband and wife together with respect for the lawful agreements of the parties is the foundation for the court to issue objective and reasonable judgments. This method of resolution contributes to maintaining transparency in property relations, ensuring the rights of the parties concerned and strengthening confidence in the strictness of the law.

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