Analysis On The Effect Of Divorce Agreement

Marriage and family relations are important part of social relations,and affecting the harmony and stability of society.With the continuous development and progress of the social economy,and with the complication of the marriage relationship,disputes over property conflicts between husband and wife have been increasing,and the divorce rate has also shown an upward trend.More and more couples choose to sign a divorce agreement to dissolve their marriage.Marriage freedom,as a basic right entrusted to citizens by the Constitution,is also the basic principle of our marriage law.Although China's current laws and regulations and relevant judicial interpretations have made some provisions for divorce settlements,there are still many deficiencies.As the application of divorce agreements in our country has become more and more extensive,the relevant provisions of the current laws and regulations in China on divorce agreements are still too broad,and the specific legal provisions are limited,which makes the existence of many opinions on the nature and validity of divorce agreements.In the course of judicial practice,there is a very different judgment in the same case.The author reviews relevant scholars' opinions,introduces the jurisprudence,analyzes the judgments of different courts,and at the same time puts forward my own opinion.The author first defines the connotation of the divorce agreement.In view of thenature of the divorce agreement,it mainly contains four kinds of doctrines,one is a single contract theory;the other is a mixed contract theory that includes personal relations and property relations;the third is a conditional civil agreement;the fourth is a composite agreement.As for the validity of pre-litigation divorce agreement,mainly includes the two viewpoints.However,some scholars in invalid theory advocate proper reference for the validity of the divorce agreement before the appeal.Referring to the viewpoints of scholars in theory and practice,the author analyzes the legal basis,advantages and disadvantages of the two viewpoints,and puts forward my own opinion on this basis.At the same time,there are many disputes about the nature of the “gift” clauses agreed between spouses in the divorce agreement and whether the issue can be revoked after donating property.Some people claim that this agreement is essentially a general gift,reference should be made to the application of the relevant provisions of the “Contract Law” in China on grants,allowing one party to withdraw it arbitrarily;The relevant provisions on gifts in the “Contract Law” allow one party to withdraw arbitrarily;others also claim that the donation is a gift with a moral obligation,which belongs to a statutory irrevocable contract and cannot be arbitrarily revoked;there is also a view that the divorce agreement is a unified whole,all parts are closely linked and cannot be arbitrarily revoked;there are also views that the “gift” in the divorce agreement is a property division clause between the parties to the husband and wife and should not directly apply to the “gift clause” provisions.In addition,divorce agreements often involve the interests of third parties.For example,the spouses signed a divorce agreement and agreed to give the spouse's property to their children.After the divorce agreement went into effect,the law allowed the partywho gave the gift to revoke the gift;and if the gift was revoked,the child could sue as an independent third party to the court.Requests for performance have different opinions on this theory and practice,similar to the “gift” problem between husband and wife.Some scholars claim that the provisions of the “Contract Law” on gifts should be applied,and some people think that it is a gift of a moral obligation.Others claim that they belong to“acontract to pay third parties”.However,even if it is regarded as “a contract to pay third parties”,there are two viewpoints.One view is that both husband and wife give the property to the children as a “contract for payment by order”,and the children do not have the right to independent claims;One view is that this agreement is a “real altruistic contract”,and children have the right to independent claims.The author agrees that the “gifts” of the husband and wife to the children's property should be attributed to the “real altruistic contract” and that the children have the right to independent requests.The author puts forward some opinions by introducing related cases and based on case analysis.The author believes that in order to solve the problems existing in the divorce agreement in China,we must first improve the relevant legislative provisions,unify the applicable standards in judicial practice,strengthen the administrative management,and at the same time further improve the agreement divorce system in order to maximally guarantee the parties and children in the divorce agreement,so as to maximize the benefits of the divorce agreement.