The Research Of The Effectiveness Of The Divorce Agreement

This paper is to study the effectiveness of the divorce agreement,combined with the examples in the judicial practice,analyzing three main issues: the divorce agreement effect problem when the meaning is defective,dozens of divorce agreement and their effectiveness,about the terms of the property in divorce agreement and their effectiveness problem.The main body is composed of four chapters.The first chapter mainly introduces the characteristics,nature and effectiveness of the divorce agreement.In chapter two,the author discusses the problem of the validity of the divorce settlement in the case of false divorce.The third chapter discusses the validity of multiple divorce agreements.Chapter four discusses the two main problems of property division in divorce settlement: property right effect or creditor's right,the agreement and revocation of property.The first chapter summarizes the divorce agreement,which involves the dissolution of the relationship,the division of property and the raising of children.And probes into the nature of the divorce agreement,academic circles there are four main views: one is single contract says,one is a kind of mixed contract says,one is a kind of effective conditions attached civil contract says,one is a kind of compound agreement says.I agree with the last theory.The composite agreement states that thedivorce agreement includes multiple identity legal actions: form behavior and accompanying behavior.The effect of accompanying behavior is the precondition for the formation of a form behavior.,if the form behavior is not effective,the accompanying behavior is not effective too.The validity of the divorce agreement is that the divorce agreement must have four effective elements: first,the parties have full capacity for civil conduct;second,written form;third,do not violate laws,regulations and public order;fourth,the division of property is real.The second chapter mainly discusses the validity of the divorce agreement.As there are many fake divorces when the restriction of purchase in our country,the divorce agreement reached by both husband and wife may have the problem of validity.This paper mainly discusses the validity of the divorce agreement reached under the false meaning.Because the divorce agreement is a composite agreement,accompanied by the premise condition of the form behavior,the author first discusses the question of whether the divorce will take effect in the case of false divorce.The prevailing view in academia is that both partners are fully civil and should be aware of the consequences of registering a divorce.Also in order to maintain the effectiveness of the administrative organ divorce registration authority,and battle with false divorce benefit,false divorce also shall be legally effective,rather than to explore the reasons and purpose behind the false divorce.In terms of the validity of the divorce agreement,this paper mainly discusses the effect of false meaning,single false meaning and fraudulent meaning.In the divorce agreement,the two parties falsely represent that the effect of the divorce agreement reached without prejudice to the interests of the state,the collective and the third party shall be deemed to be valid between the husband and wife.Safeguard the authority of the divorce agreement filed by the registration authority,and fight the false divorce.If thedivorce agreement infringes on the interests of the third party,it shall be invalid to the third party in order to protect the interests of the third party.If the agreement is made in case of fraud,it may apply for cancellation or alteration.If the court changes or rescinds,the original divorce agreement shall be invalid from the beginning,but it shall not be against the third party in good faith.The third chapter mainly discusses the validity of multiple divorce agreements.There are several types: The divorce settlement before the lawsuit is signed by the husband and wife before the divorce registration;A registered divorce agreement is a divorce agreement registered with the marriage registration authority in the event of a divorce registration;A post-divorce settlement is a supplement to a change in the agreement or to an unfinished business.The binding force of the divorce agreement has been established since the signing of the agreement,and the unilateral party cannot modify or deny the agreement.However,before the divorce registration authority has registered for divorce,according to article 14 of the judicial interpretation of marriage law(three),the pre-registration divorce agreement shall not be valid until the divorce is registered.One party go back on his word,the other party can't according to before litigation divorce agreement calls for the other party to the marriage registration office to register the divorce or divorce to the court for judgment,but should be to reach an agreement or court judgment according to the provisions of the marriage law.When registration before the divorce agreement with divorce dispute,should be to register the divorce agreement for maximum effectiveness,before the registration of divorce agreement whether to divorce registration agreement conflict,shall not take effect.Registration of divorce and divorce added after the divorce agreement contradict,if after the divorce complementary divorce agreement was signed under real intention betweenthe two parties,shall be admitted its effect.When the divorce agreement is not inconsistent with the registration,the two parties shall have the same effect.In case of conflict with the divorce of the registration,the divorce agreement after the divorce shall prevail,but not the third party.However,if it is a certificate issued by a single party,it shall be deemed as a simple gift and applicable to the provisions of the contract law concerning the gift.In fourth chapter,the author discusses the two main problems of property division in divorce settlement: property right effect or creditor's right,the contract of property and the right of revocation.The question about whether the property division clause produces the property right or the validity of the creditor's rights.In this paper,the author proves that the divorce settlement clauses can not produce the property right and can only produce the effect of creditor's rights.Because of its absolute power to the world and exclusivity,property rights must be maintained through public display in order to maintain the security of the transaction.The divorce agreement was signed between the husband and wife,and it is impossible to know whether their property was anew division in divorce agreement.The third party can only judge the property owner through the existing public display means of the property.Therefore,in order to protect the convenience and stability of property transactions,the author believes that the divorce agreement should have the effect of creditor's rights.The practice of the housing registration department has also verified this view.For only according to the marriage registration office of the housing sector for the record of the divorce agreement to deal with property right for the change was rejected,must be on the ownership of the people to the house property right card registration departments to transfer formalities.Questions relating to the agreement and revocation of the property concerned.This paper mainly discusses three main controversies.First,the property division in the divorce settlement is the marital property division agreement or the bestowal issue between husband and wife.Divorce agreement behavior and identity is a property of compound agreement,not merely will divorce agreement on compensation or personal belongings before marriage,husband and wife joint property to pay their terms in nature is equal to the gift,but the premise of division of property in divorce of husband and wife.Second,the issue of the right to revoke the children of the third party.The divorce agreement refers to the property belonging to the children,which is the expression of the parents' true meaning.If the parties are allowed to withdraw at will,it is bound to damage the divorce agreement.Therefore,the act of attributing property to a third person is not a gift and cannot be revoked before the gift.The essence of which is to the third person to perform the contract,children have no performance of the right of claim,but the couple did not regret the one party may request the back side of the performance of the divorce agreement,transferring the ownership of the property to their children or a third party.If both sides of husband and wife don't want the property to their children,to cancel the original agreement,the two men reached an part on division of property,shall be deemed to be a couple changes to the terms of the divorce agreement in postnuptial agreement,the third party has no right to ask the two sides continue to perform.Third,about the divorce,whether on the grounds that the explicit unfair to change or cancel the divorce division of property problem of the agreement,the division of property in the marriage law of the division of property and contract law of the foothold is different,the marriage law of the parties to form this kind of special coupling relationship,marriage divorce agreement is compound.Although the "contract law" article 54 in conclude when the contract exists unfair or misunderstanding,can request a change or cancellation,but the property of the contract law,after all,just deal with laws and regulations,does not involve the behavior of the identity,so both parties equally.Therefore,after the divorce,the parties can not change or revoke the divorce settlement agreement on the grounds of unfairness.The conclusion of this paper is summarized in this paper.The structure of this article is restated,and the contents of each chapter are summarized.The exploration of the validity of the divorce agreement is essentially the exploration of the nature of the divorce agreement.As a composite agreement,the divorce agreement contains multiple identities.Only the dissolution of the marriage relationship takes effect,and the division of the marital property and the accompanying of the child are effective.