Can a Wife Claim Her Husband’s Secret Investments?

According to Lawyer Nguyen Thanh Ha, Chairman of SB Law Firm, the current law stipulates that when a spouse possesses, uses, or disposes of joint property, there must be an agreement between the husband and wife. In addition, spouses have a joint obligation for property arising from the possession, use, or disposal of joint property as prescribed in Clause 3, Article 37 of the Law on Marriage and Family. Therefore, if one spouse invests a large amount of money from joint property, the other spouse must be informed and have a clear agreement on the obligation.

Article 36 of the Law on Marriage and Family stipulates on the joint property of the couple doing business as follows:

“In case the couple agrees that one party puts the common property into business, that person has the right to make transactions related to that common property by himself/herself. This agreement must be made in writing.”

Thus, according to the above regulations, if there is an agreement between the couple on one side putting the joint property into business, that person can use the couple’s joint property to invest in securities, buy insurance…

However, it should be noted that this agreement must be made in writing, clearly stating the object of the agreement, including the type of property, the quantity of property, and the rights and obligations of the parties in putting the couple’s joint property into business.

Therefore, the disposal of the couple’s joint property must be agreed upon by both spouses. If this money is the joint property of the couple, the act of one spouse disposing of the property to another person is contrary to the law. Therefore, when a spouse uses money to invest without the other’s knowledge, the other has the right to sue to claim the property or request the Court to declare the transaction invalid according to the Civil Procedure Code of 2015.

“It can be seen that for one spouse to be able to use joint property for investment, the other spouse’s consent is required. In case there is no consent from the other spouse and one spouse uses joint property for investment for business purposes, the transaction is considered invalid,” affirmed Lawyer Ha.

According to Article 35 of the Law on Marriage and Family 2014, the possession, use, and disposal of common property shall be agreed upon by the couple. The disposal of joint property must be agreed upon in writing by the couple in the following cases: Real estate; Movable property that must be registered for ownership as prescribed by law; Property is the main source of income for the family.

Accordingly, the use of the couple’s joint property must be agreed upon by both parties. This implies that the other party will be aware of the purpose of the joint property.

However, in case one of the spouses establishes or performs transactions related to joint property to meet the essential needs of the family, it shall be deemed to have the consent of the other party, except for the case prescribed in Clause 2, Article 35 of the Law on Marriage and Family (Clause 1, Article 13 of Decree No. 126/2014/ND-CP detailing a number of articles and measures to implement the Law on Marriage and Family)

Similarly, Lawyer Tran Tuan Anh, Director of Minh Bach Law Office, also said that according to the Civil Code of 2015, the Law on Marriage and Family, wives and husbands have equal rights in disposing of common property, and the exercise of property rights of wives/husbands during the marriage must not infringe upon the rights and legitimate interests of the other party and must be agreed upon by the other party.

If one of the spouses disposes of the joint property causing damage to the other spouse, he/she may have to compensate for the damage caused by his/her act.

In addition, according to Lawyer Tran Tuan Anh, Article 32 of the Law on Marriage and Family stipulates: “In transactions with a third party, the wife or husband whose name is on the bank account or securities account shall be considered as the person who has the right to establish and perform transactions related to that property.”

“The wife or husband who is in possession of movable property that does not have to be registered for ownership as prescribed by law shall be considered as the person who has the right to establish and perform transactions related to that property in cases where the Civil Code has regulations on the protection of innocent third parties.”

According to this regulation, the use of movable property that does not require registration for transactions such as cash (movable property that does not require registration)/bank account/securities account in the name of the wife/husband does not need the consent of the other party.

On the other hand, according to the Law on Credit Institutions, the Securities Law, and guiding documents, it is not mandatory for husbands and wives to register together to open bank accounts or securities accounts.

Can the lost investment money be recovered?

Answering the question of whether, in case of investment risks, the spouse (who does not know) can get the money back or not, Lawyer Nguyen Thanh Ha said that, based on Article 166 of the 2015 Civil Code, which stipulates the right to claim the property:

1. The owner or the person who has other rights to the property has the right to claim the property from the possessor, the user of the property, or the person who benefits from the property without legal grounds.

2. The owner shall not have the right to claim the property from the possession of the subject who is currently having other rights to that property.

Comparing the above regulations, to determine whether the spouse (who does not know) can get the money back or not, it is necessary to determine whether the money invested is joint property or not. At the same time, Clause 2, Article 13 of Decree No. 126/2014/ND-CP states:

“In case one of the spouses disposes of the common property in violation of the provisions of Clause 2, Article 35 of the Law on Marriage and Family, the other party has the right to request the Court to declare the transaction invalid and resolve the legal consequences of the invalid transaction,” Mr. Ha elaborated.

Meanwhile, Lawyer Tran Tuan Anh analyzed: When a wife or husband uses unregistered assets such as cash/bank account/securities account to buy stocks, bonds, or insurance and encounters risks, the other party is unlikely to be able to claim money from the third party.

Except when, if the person establishing the transaction with the wife or husband has been provided by that person or the other party with information about the property regime of the couple as prescribed above but still intentionally establishes the transaction, that transaction is invalid. The wife or husband may request to declare that transaction invalid with respect to his/her part of the property.

“However, in reality, it is very difficult to declare that transaction invalid, so it is almost impossible to claim money from a third party,” Mr. Tuan Anh said.

He elaborated that Article 8 of Decree No. 126/2014/ND-CP stipulates: “A third party is not innocent when establishing and performing transactions with a wife or husband related to a bank account, a securities account, or other movable property that does not have to be registered for ownership as prescribed by law.”

“A third party who establishes and performs transactions with a wife or husband related to a bank account, a securities account, or other movable property that does not have to be registered for ownership as prescribed by law shall be considered not innocent in the following cases:

Has been provided by the wife or husband with information as prescribed in Article 16 of this Decree but still establishes and performs transactions contrary to that information;

The couple has publicly agreed as prescribed by the relevant law on the possession, use, and disposal of property, and the third party knows or must know but still establishes and performs transactions contrary to the agreement of the couple.”

Article 13 of Decree No. 126/2014/ND-CP stipulates that the possession, use, and disposal of common property shall be agreed upon by the couple. In case one of the spouses establishes or performs transactions related to common property to meet the essential needs of the family, it shall be deemed to have the consent of the other party, except for the case prescribed in Clause 2, Article 35 of the Law on Marriage and Family.

“In case one of the spouses disposes of the common property in violation of the provisions of Clause 2, Article 35 of the Law on Marriage and Family, the other party has the right to request the Court to declare the transaction invalid and resolve the legal consequences of the invalid transaction,” he said.

Prevention is better than cure

To protect assets and interests in married life, Lawyer Nguyen Thanh Ha recommended that asset protection and interest protection in married life should start from understanding and complying with the regulations of the law on marriage and family.

First of all, couples should consider signing a prenuptial agreement to agree on property. The contract may contain clear identification of separate and common property of each person before entering into a marriage, thereby avoiding unnecessary disputes over property later. The law also allows spouses to agree on property before marriage under Article 47 of the 2014 Law on Marriage and Family:

“In case the two parties getting married choose the property regime by agreement, that agreement must be made before the marriage, in the form of a notarized or certified written document. The property regime of the couple according to the agreement shall be established from the date of marriage registration.”

During the marriage, joint property management is also an important factor; couples should discuss and agree on how to manage joint property, possibly opening a joint bank account for family spending and having clear agreements on personal spending. This ensures that both parties have equal rights and responsibilities in using joint property while helping to avoid financial conflicts.

Both wives and husbands should equip themselves with legal knowledge about marriage and family to protect their rights in case of disputes. This includes knowing the rights of ownership of property, the rights and obligations in raising and caring for children, as well as the right to participate in deciding important issues in the family. But the core is still maintaining trust, honesty, and respect for each other in the marital relationship to protect the assets and interests of each party as well as the marital relationship.

Meanwhile, Lawyer Tran Tuan Anh recommended that in many cases, a wife or husband takes all the family’s assets to “invest” but loses money, and the other party is left without assets and sometimes has to “bear” the debts created by the other, leading to an inability to ensure a living for the family and raising children.

“We should agree to establish the property regime of the couple before marriage or during the marriage. This can reduce the joint liability of the other party in transactions with third parties when it is proved that the investment of the wife/husband does not contribute to the common property.

This also partly attaches responsibility to the wife or husband before deciding to make high-risk transactions, and he/she must inform the third party about the property regime,” he said.

“However, according to the cultural concept of the Vietnamese family, most people are reluctant to mention the property agreement before marriage, for fear of being judged by the other party as being too “fair” and “practical.” Therefore, we need to change this way of thinking,” he said.

In addition, according to the lawyer, the couple should respect each other, agree on the management and use of joint property, agree on investments that are suitable for each other’s business, and ensure a stable family life. Or the couple can jointly own a bank account, and when making a transaction, it is mandatory to obtain the consent of both spouses.