Research On Divorce Property Settlement Agreement

With the development of our society, the divorce rate is continuously soaring. The procedure of divorce has changed from a series of regimes to more simplified ones. Meanwhile,people’s attitude toward divorce is varying.Emerging problems of properties and children’s guardianship come along with the collapse of marriage bonds. Divorce Property Settlement Agreement has been paid more attention to. Based on other related theories on this topic,hot events and judicial cases, this research is divided into several parts as followed: the content, nature, effect, overseas legislation and consummate suggestions of the Divorce Property Settlement Agreement.In Chapter One, the basic concepts and content of Divorce Property Settlement Agreement are introduced, and a conclusion on the feature of Divorce Property Settlement Agreement (a special contract with its Gultigkeitserfordernis fixed by legislation) is made though comparison between similar contracts, including ordinary contracts, Divorce Agreement and Marital Property Contract.In Chapter Two, the legal qualities of the Divorce Property Settlement Agreement are analyzed by introducing three main stream opinions:Single-identity Contract, Mixed-contracts, and Conditional Contract, all of which have their pros and cons. This research is intended to regard the Divorce Property Settlement Agreement as the special contract with its Gultigkeitserfordemis fixed by legislation, quite similar to the Conditional Contract.In Chapter Three, the research is deepened to the field of the Divorce Property Settlement Agreement’s effect, including but not limited to its effective date and effectiveness. At the moment of the termination of marital relationship, the Divorce Property Settlement Agreement comes into effect.As for the part related with properties, each party is entitled to revoke or change the contract through the court in cases that there exists fraud or threat.At the same time, based on this research, if a contract contains the content that harms the children’s interests, that part shall be regarded as one condition to change the contract. The nullity of property part shall not make any effects to other parts or the contract.In Chapter Four, the research focuses on the problems and limitations of current Chinese laws and regulations related with the Divorce Property Settlement Agreement though historical development of legislations.In Chapter Five, overseas legislation experience is brought in to analyze related regulations of the Divorce Property Settlement Agreement. In consideration of China’s current conditions, the research is intended to choose those acceptable overseas regimes to introduce into China for the sake of improving current Marital Property Regimes.In Chapter Six, introduced are those social issues, such as the ownership of real estate, the effectiveness of the notarial Divorce Property Settlement Agreement, and the feature of the contract agreeing to give parts of or all of marital property as the gift to children.The last Chapter comes to a conclusion. Based on China’s current situations and overseas legislation experience, this research makes proposals on improving China’s system of divorce, for instance, establishing the pre-interfering regimes, including Witness System and Pre-notary Regime,intermediate controlling regimes that emphasize the protection of weak party in marriage, afterward relief regimes directed by re-division of property.