Article 29 of the 2014 Law on Marriage and Family clearly states that husband and wife have equal rights when they want to sell their common property. In particular, according to Clause 2, Article 35 of the 2014 Law on Marriage and Family, if the common property is real estate (land, house attached to land...), the decision (including the sale of land) must be made in writing by the husband and wife.
Thus, when wanting to sell land that is the common property of husband and wife to another person, when notarizing the sale contract, both husband and wife must be present to sign the sale contract. In case the wife is abroad and cannot be present, it can be done in one of the following two ways when the husband wants to sell the land:
Method 1: Wife authorizes husband to sell land
If choosing the power of attorney, the couple can do it while they are still in Vietnam or even when the wife is abroad and cannot return to the country to sign the land sale contract.
* When husband and wife are in the same place
Although there is no regulation requiring the authorization contract to be notarized or authenticated, to ensure legality, the couple should have it notarized at a notary organization.
* When the couple is not in the same place
A power of attorney is a type of contract that does not require both parties to be present at a notary office. This means that if the husband is in Vietnam and the wife is abroad, the couple can completely perform the power of attorney in two places (according to Clause 2, Article 55 of the Notary Law).
- Regarding the person living abroad: Because one of the spouses is living abroad, according to the provisions of Clause 1, Article 78 of the Law on Notarization, the person living abroad can go to the diplomatic representative agency or consulate of Vietnam abroad to notarize the authorization document.
In this case, the notary will be a consular officer or diplomatic officer with a bachelor's degree in Law or who has received training in notary practice.
The procedure is similar to the procedure for notarizing a power of attorney contract when the husband and wife are in the same place in the country as mentioned above.
- For people in the country: After the person abroad completes the procedure of notarizing the authorization document and sends it to Vietnam, the person in the country continues to go to any notary organization nationwide to notarize this authorization document.
Method 2: Division of common property of husband and wife such as house and land
In addition to the authorization method, so that the husband has full authority to sell land without the opinion of the couple, before the wife goes abroad, the couple can divide the common property during the marriage.
Accordingly, based on Clause 1, Article 38 of the Law on Marriage and Family, spouses during marriage may agree to divide part or all of their common property, except in cases where it is intended to avoid the obligations of raising, providing support, compensating for damages... or affecting the interests of the family, minor children...
Therefore, if one of the two parties has to go abroad and is unable to return home, the common property during the marriage can be divided and the husband given full authority to decide on the part of the property intended to be sold. At that time, the house and land will become the husband's separate property (based on Clause 1, Article 43 of the Law on Marriage and Family).
