On The Divorce Agreement Before Lawsuit

As the core element of the non-lawsuit divorce, the divorce agreement before lawsuit is the most important representation of the voluntary divorce, and especially the registered divorce in law, the necessary legal basis for canceling the marital relationship and treating the relevant bringing up of children and common properties of the original couples (including the common creditor's rights and debts) through the administrative procedure and the legal prerequisite and basis for correctly understanding, establishing the regulations by law and effectively realizing the voluntary divorce by agreement. Because there are many principles in the relevant articles of the marriage laws and their judicial interpretations of China at present and the contents are simple, there are many understandings of the property and effect of the divorce agreement before lawsuit in the actual life and it brings about the difficulty and confusion in the application of laws and practical operation, to some extent. Therefore, it is necessary to carry out the deep-going research on some important issues such as legal nature, legal applicability and legal effect, etc. of the divorce agreement before lawsuit.First, according to the regulations of the current marriage laws and the relevant judicial interpretations of our country, the basic connotation of the divorce agreement before lawsuit is defined in the paper. The divorce agreement before lawsuit refers to the written agreement concluded by both the couples on the appropriate treatment of some relevant issues such as voluntary cancellation of the marital relationship, bringing up of children and division of the common properties, etc. in the process of the divorce agreement (especially the non-lawsuit registered divorce). Aiming at the voluntary cancellation of the marital relationship of both the man and woman and treatment of the relevant bringing up of children and consequences of properties, etc. thereof, the divorce agreement before lawsuit has some basic legal characteristics such as specific subject, definite contents and formal format, etc. Combined with the marriage laws and judicial practice of our country, some relevant legal concepts that are closely related to the divorce agreement before lawsuit and shall be accurately differentiated and defined in both theory and practice are mainly represented in the three aspects, that is, divorce agreement and divorce by agreement, divorce agreement before lawsuit and divorce agreement in lawsuit, divorce agreement before lawsuit and agreement on the couple's properties in the marriage.Second, the legal nature of the divorce agreement before lawsuit of our country is analyzed in the paper. The divorce agreement before lawsuit is the mixed civil agreement (contract) containing the personal relationship and property relations between the equal subjects. Viewed from the legal nature, the divorce agreement before lawsuit is not a general civil contract but a special one. And such a specialty of the divorce agreement before lawsuit shows that it is not a pure property contract. Therefore, for the legal applicable issues of the divorce agreement before lawsuit, the regulations of some relevant current laws of our country such as Marriage Law, Marital Registration Management Rules, Article 8 and Article 9 of the Interpretations to Some Issues Applicable to the Marriage Law of the People's Republic of China of the Supreme People's Court and the General Rules of Civil Law as well as the Contract Law, etc. are the basic legal basis for understanding and determining some issues such as nature and legal effect of the divorce agreement before lawsuit.Third, based on the analysis and understanding of some relevant regulations on the divorce by agreement in the current legal system of marriage of our country, the legal conditions for 6 aspects such as subjective elements, acceptable (subjective) elements, elements of contents, formal elements and legitimate elements and procedural elements, etc. that the legal effect of the divorce agreement before lawsuit shall have. The divorce agreement before lawsuit conforms to the legal conditions that it shall have and the legal effect occurs, the marital relationship (personal relationship) of both the parties is cancelled by law, the original mutual rights and obligations based on the couple's relationship are eliminated, the property relation of both the parties also comes into effect according to the relevant commitments of the agreement and the common properties (and debts) based on the couple's relationship are divided and determined again according to the commitments of the agreement after both the parties concerned deal with the divorce procedure and obtain the divorce certificate. However, in the relevant legal case, the agreed contents on the division of properties and treatment in the divorce agreement before lawsuit and even the whole divorce agreement before lawsuit can be cancelled, changed or determined invalid because the parties concerned institute the civil lawsuit or administrative lawsuit by law and it is tried by the people's court and the relevant judgment is made, so the divorce agreement before lawsuit has the relevant state of legal effect.Finally, in accordance with the blank and defects of the divorce agreement before lawsuit of our country, some relevant legislative suggestions on establishment and perfection of the relevant administrative and judicial systems and mechanisms of the divorce agreement before lawsuit of our country and the real strengthening of the laws and regulations and monitoring of the divorce agreement before lawsuit are also presented in the paper. The relevant laws shall be further perfected and the standardization and management of the divorce agreement before lawsuit shall be enhanced to truly give play to the roles of protecting the legitimate rights and interests of the parties concerned, their children and other good-will third parties. It is the realistic issue that faces us and shall be resolved.