The Research Of The Effectiveness Of The Divorce Agreement

The main object of this article is to study the problem of the effectiveness of the divorce agreement before or after the divorce in our country. The text consists of three parts, each part consists of a chapter: the first part summarizes the conception、the type、the effectiveness and the nature of the divorce agreement; the second part studies the effectiveness of the divorce agreement signed before the divorce; the third part analyzes the effectiveness of the divorce agreement signed after the divorce.The first chapter briefly introduces the conception、the type、the effectiveness and the nature of the divorce agreement. The divorce agreement exists in registered and contentious divorce proceedings; it agrees the problems of voluntary divorce, child support and division of property and so on. This paper will study the divorce agreement before lawsuit,the registered divorce agreement and the judicial divorce agreement. In general,the divorce agreement before lawsuit refers to the divorce agreement which signed by the parties, but one party regrets and refuses to deal with divorce registration, another party has to appeal to the court if he or she wants to divorce. This paper argues that there are other kinds of divorce agreement before lawsuit. They include the divorce agreement which the parties signed before the divorce, but unused in the divorce and the divorce agreement which the parties sign after the divorce. If the parties divorce successfully, the two kinds divorce agreements do not have compulsory execution. If one party fails to perform them, another party has to appeal to the court to determine their effectiveness. There are lots of the registered divorce agreements and the judicial divorce agreements, but the former without compulsory execution. The divorce agreement before lawsuit and the registered divorce agreement easily lead to many practice disputes and academic debates. This article will mainly explore them. The effectiveness of the divorce agreement is the fundamental problem of the negotiated divorce system. There are two reasons leading to the disputes of the effectiveness of the divorce agreement, one is that the marriage law of the People’s Republic of China and the judicial interpretations are not perfect, another is that the scholars have different opinions on the understanding of nature of the divorce agreement. There are four theories about the nature of the divorce agreement: the theory of a single contract involving personal relationship, the theory of mixed civil contract, the theory of conditional civil agreement and the theory of composite agreement. The first three doctrines either have limitations or cannot justify itself, but the theory of composite agreement is more persuasive. It claims that the divorce agreement is a mixture of several identity legal acts; it not only includes the behavior of the formation of canceling the marriage relationship, but also the behavior of the accompanying of the division of marital property and child support. The effectiveness of the behavior of the accompanying accompanies the behavior of the formation. If the behavior of the formation does not take effect, the behavior of the accompanying does not take effect too. This article studies the effectiveness of the divorce agreement on the basis of the theory of composite agreement.The second chapter mainly studies the effectiveness of the divorce agreement before the divorce; it involves the valuation of the divorce agreement before lawsuit in the lawsuit. According to the third judicial interpretation of the marriage law and the theory of composite agreement, we know that the divorce agreement before lawsuit is not effective,there is no legally binding. But the divorce agreement is not useless; this paper calls it the retention of the divorce agreement before lawsuit. It reflects the relationship and the status of the property of the parties to a divorce. At the same time,it reminds the parties to carefully fill for divorce, cherish the feelings of husband and wife, protect of minor children, reduce the consumption of relatives and friends’ feelings、time、energy, reduce the judicial litigation, maintain the moral and ethical nature of marriage and family and so on. When the court decides the divorce, it should be regarded as the important basis of identifying that husband and wife’ feelings have indeed broken and dealing with the problem of the division of marital property and child support.The third chapter mainly studies the effectiveness of the divorce agreement after the divorce, including the effectiveness of several copies of the divorce agreement, the nature of the right of claim in the divorce agreement, the effectiveness of the divorce "gift" clause in the agreement, the effectiveness of the divorce agreement to a third person(children) and the effectiveness of the false divorce agreement. After divorce, these problems appear.The first problem is that the effectiveness of several copies of the divorce agreement. The several copies of the divorce agreement include the divorce agreement be signed before the divorce, the registered divorce agreement and the divorce agreement be signed after the divorce. In the divorce agreement be signed before the divorce the parties can agree to registration divorce and litigation divorce, if their finally way of divorce is different with the agreed, then the previous divorce agreement is not in force. If the parties finish the divorce registration, then the divorce agreement which unregistered, reflecting the true intention, not contradictory with the registered divorce agreement, meeting the requirements of effective is effective, it has legally binding. Under normal circumstances, the registered divorce agreement is effective(unless there is special agreement by the parties), and it has the strongest potency among the copies of the divorce agreement, but it does not have compulsory execution. There is a kind of divorce agreement that the parties only agree to the divorce property division if they divorce. The divorce agreement signed after the divorce belongs to this kind of divorce agreement. If it reflects the parties’ real intention and meets the requirements of effective, it should be effective. If there is a contradiction between it and the registered divorce agreement, it will have the top effectiveness between the parties to a divorce, but in order to protect the third person’s interest, the latter one will be adopted when there is a dispute between the parties and the third person.The second is the problem of the nature of the right of claim in the divorce agreement. After the divorce agreement taking effect, it producing the real right effect or creditor’s right is very important to the parties. Our marriage law and its judicial interpretations have not showed that the divorce agreement produces the real right effect; it just claims that the divorce agreement is legally binding on the parties. According to the property law of the People’s Republic of China about the regulation of the real right change, we know that unless there are special provisions, there is no real right change effect. Many experts and scholars as well as the third judicial interpretation of the marriage law tend to claim that the marriage law belongs to the civil law, the content of the marriage law should assort with the civil law. In addition, in order to protect the third person in good faith and maintain the transaction security and stable the legal relationship between the parties of divorce agreement,it is necessary to affirm that the divorce agreement produce creditor’s rights. So, judging from the current civil law system, we know that the divorce agreement does not produce the real right effect.The third is the effectiveness of the divorce "gift" clause in the agreement. The parties agree on the personal property or the community property belongs to the other party or their children in the divorce agreement,this kind of convention is not the gift clause, it is the divorce division of marital property agreement. It is legally binding on the parties. After the divorce agreement coming into effect and before the change of property right, the parties can reach a negotiated consensus to change or cancel the convention,but one cannot tear up the agreement without authorization.The fourth is the effectiveness of the divorce agreement to a third person(children). The parties agree on the personal property or the community property belongs to their children in the divorce agreement, it is also the divorce division of marital property agreement. Our marriage law and its judicial interpretations show that the divorce agreement is legally binding on the parties, they do not claim that it constraints other people. If the marriage law does not make clear regulations on the problems of property, they can be flexible to apply the contract law of the People’s Republic of China. Third party interest contract can be divided into real third contract and “through the instructions for payment of the contract”. The third person in the real third party interest contract enjoys the direct right of claim. It includes the original right of claim and the secondary right of claim. Our contract law provides the third party interest contract in the chapter of “for the implementation of the contract”, and it shows that the third party has no the secondary right of claim. According to the logical inference and legal interpretation, we know that our contract law does not admit the real third party interest contract, it only admits “through the instructions for payment of the contract”, the third party has no direct right of claim. According to the contract theory, we know that the real third party interest contract must contain a promise to the third party, but the divorce division of marital property agreement only contains promises between husband and wife; there is no any promise to the third party. So, the divorce division of marital property agreement is a kind of “through the instructions for payment of the contract”, the third party has no the direct right of claim.The last is the effectiveness of the false divorce agreement. Our marriage law has no the conception of false divorce. This paper insists that it should include the collusive false divorce, the fraudulent false divorce and the intention qualified divorce. The collusive false divorce and the fraudulent false divorce are more common in the practice. In terms of processing property, the party who is fraud can request the court to change or revoke the divorce agreement for the reasons of divorce division of property agreement fraud or unfair in one year; but the collusive parties can not do that, the agreement should be considered to be invalid when it damages the interests of national、 collective or a third party. In the aspect of divorce registration, from the protection of the third person in good faith with the perspective of maintaining social order, it is not allowed to be canceled, unless the civil affairs bureau causes a serious violation of program, and the fraud party has not remarried with a third party. Under the circumstances, the party who is fraud can request the civil affairs bureau or the court in the administrative litigation to revoke the divorce, but the parties still can not request to revoke the divorce when they are collusive.In the epilogue, this article reasserts that the divorce agreement is a composite agreement; the content involves the identity relationship and property relationship. The contents of property in the divorce agreement are easily triggering controversy of the effectiveness. When we deal with this problem we should consider its particularity and follow certain rules of the applicable law. We can’t not blindly apply the property law 、the contract law or the general principles of the civil law of the People’s Republic of China. We should flexibility to apply them.