Research On The Nature Of The Third Party Beneficiary Clause In Divorce Agreement

As a premise of dissolution of marriage,disposition of marital property of a divorce agreement attracts extensive attention and becomes a main issue of divorce dispute.Upon signing a divorce agreement,husband and wife would set a third party beneficiary clause so that to dispose the community property or personal property to a third party,for the purpose of child care and benefit.In consideration of the property and identity characteristics of divorce agreement,there are different opinions relating to the nature of the third party beneficiary clause in divorce agreement in academic research as well as judicial practice.Those opinions could be classified into three main categories: the donative contract theory,payment by instruction theory and third party beneficiary contracts theory.Because of the nature of third party beneficiary clause directly affects the benefits of the divorce parties and the third party,it would be significant for judicial practice to research the nature issue.This paper is divided into four chapters.The first chapter starts from typical cases and demonstrate the key controversy of the nature of third party beneficiary clause in divorce agreement and analysis the reasons and difficulties for this issue.Chinese civil law system presents a rigid attitude towards the privity of contract principle,and there is no definite and direct rules relating to the third party beneficiary contracts.Therefore,many inconsistent arguments emerge on the issues about the transfer of property ownership and priority application problems of the "Marriage Law","Contract Law" and "Property Law".The second chapter demonstrates theoretical basis for the nature of third party beneficiary clause in divorce agreement,and makes a comparison with the "Contract Law",several special regulations and comparative law that relating to third party beneficiary contracts,thus demonstrates a breakthrough for the privity of contract principle.By making a comparison with the "Contract Law","Property Law" and "Marriage Law",as for divorce characteristic of dual-natural legal action,the "Marriage Law" should prevail.Then this paper analyses theoretical basis and legal features of the donative contract theory,payment by instruction theory and third party beneficiary contracts theory,therefore summarize the reason and applicability in the third party beneficiary clause.The third chapter analyses the inapplicable reason for donative contract theory and payment by instruction theory,therefore the third party beneficiary contract theory would prevail in the situation of third party beneficiary clause in divorce agreement.The last chapter discusses the protection of third party's benefit in divorce agreement.Firstly,the divorce parties have no rights to revoke or change the third party beneficiary clause for the lack of legal basis and for the protection of third party's benefit.Secondly,the third party beneficiary theory should be applied in the third party beneficiary clause in divorce agreement.Therefore,the third party has legitimate rights to bring a claim when his legal benefits get damage,and the litigation status of each party should be reasonably arranged in accordance with the third party's civil capacity.