Analysis Of The Clauses Of Gifting Children Property In Divorce Agreements

At the time of divorce,the husband and wife often agree to assign part of the property to their children.After the divorce,one of the couple retreats the way of handling the property and refuses to fulfill the agreement.The party appeals to the court to request the withdrawal of the gift,or the other party and the child appeals to the court to perform in accordance with the agreement,which leads to many disputes.The two typical questions are: 1.Can such clauses be arbitrarily revoked after divorce?2.Can the child obtain the right to fulfill the claim based on this clause? For these two problems,there are a large number of different judgments in the trial practice.Scholars also express different views on the theoretical level.The key to the above-mentioned practical disputes and academic disputes lies in the different understandings of the nature of such clauses.The author believes that the terms of Gifting Children Property in Divorce Agreement is still essentially a divorce property division agreement,which is a sub-content of the divorce agreement.From the nature point of view,the divorce agreement is a compound agreement,which contains multiple identity legal acts.These identity legal acts can be divided into“formation behavior”,“attachment behavior” and “dominant behavior”.The dissolution of the marriage relationship agreed in the agreement is a formation act,and the property division plan,the child-rearing clause and other contents areattachment behaviors.The divorce agreement gifting the child property clause is the same as other property treatment clauses,and belongs to the accompanying act in the divorce agreement.The divorce property division agreement is different from the marital property agreement and the general property agreement.It has the following characteristics: First,the parties to the agreement are married.2.The content agreed in the agreement is the ownership of the husband and wife property.3.The entry into force of the agreement is based on the divorce of the husband and wife and is not binding on the husband and wife before the divorce is registered.The divorce agreement "gift" children’s property clause also belongs to a type of divorce property division,the reasons are as follows: First,the signatories of both are husband-wife relations.Second,both are ways of dealing with the joint property of husband and wife.Third,both play a role in clarifying the relationship of divorce property.Fourth,both of them are parts of the divorce agreement and are consistent with the nature of the accompanying actions in the composite agreement.Fifth,both of them take the divorce of husband and wife as the effective element.At the same time,as a sub-agreement in the divorce agreement,these clauses also satisfies the concept of the third-party interest contract.In the third-party interest contract,there is a certain creditor-debtor relationship between the parties,and then the debtor is required to perform the payment to the third party.The husband and wife who entered into the divorce agreement may also have a debt relationship.Before the marriage relationship is dissolved,neither party has the right to completely dispose of the specific property.The husband and the wife make a promise to each other and give the other party the share of the property.But the object of disposition of the property should be the child.Based on the mutual promise of dismissal of property,the husband and wife establish both the creditor relationship and the debtor relationship,and the parties specify the object of performance,and such clauses are thus consistent with the construction of the third party’s interest contract.The author believes that it is unreasonable to define such clauses as “identity relationship agreements” and then to exclude the application of the Contract Law in accordance with Article 2 of the Contract Law.The terms of gifting the child propertydo reflect the identity relationship,but the conclusions that exclude the application of the Contract Law cannot be derived accordingly.First of all,Article 2 of the Contract Law stipulates that the application of other laws is limited to “an agreement on the nature of identity”,and such clauses have both an identity relationship and a property relationship and cannot be regarded as a purely identity relationship agreement.Secondly,there is a theoretical dispute over the understanding of Article 2 of the Contract Law.When other laws do not provide for it,it should be considered that the Contract Law can still be applied mutatis mutandis.Such clauses are also not a “gift of moral obligation”,whether a gift is a gift of a moral obligation or not.The criterion is whether the purpose of the gift is related to fulfilling the moral obligation.The moral attributes of the behavior should be required to reach a certain height.If this moral height is not reached,the gift behavior cannot be arbitrarily incorporated into the gift of the moral obligation nature.In the context of divorce,the husband and wife’s gift to the child reflects the husband and wife’s care for the child,but it does not meet the ethical standards required to establish a moral obligation.Such clauses are also not “purposed gifts”.The so-called purpose gifts are gifts that are intended to help the recipient achieve a specific purpose.However,in such clauses,the child does not have a requirement to achieve a certain purpose,and the husband and wife set such clauses not to help the child achieve a certain purpose.In fact,the giving children property clauses are different from the general gift contract,and cannot be included in the scope of the gift contract.The difference between the two are: First,the child does not accept the meaning that the divorce agreement to the children’s property clause is often signed by the husband and wife,and does not reflect the child’s acceptance of the gift.Second,the effective requirements of the two are different.The effective requirements of such clauses are not that the recipient accepts the gift,but the husband and wife register the divorce according to the agreement.Third,it not only reflects the pure property relationship between the parties,but also is inseparable from the dissolution of the identity relationship.After characterization of the terms of the divorce agreement to the child’s property,the author continues to discuss the issue of the validity of such provisions and the right to request children.Such a clause is essentially a divorce property division,so it is irrevocable under normal circumstances,but can be revoked under special circumstances.The reasons for irrevocable are: First,the integrity of the divorce agreement.The property relationship agreement in the divorce agreement comes into effect with the entry into force of the identity relationship agreement,and the divorce agreement is a close-knit whole.Due to the irreversible dismantling of the relationship between husband and wife,the divorce agreement cannot be revoked as a whole,and only some of the clauses can be revoked.However,the premise that some clauses can be revoked is the divisibility of the payment,but on the contrary,the overall reflection of the divorce agreement It is the inseparability of the articles.2.Since such clauses are classified as divorce property,they should also be included in the legal application logic of the divorce property division agreement.Articles 8 and 9of the Interpretation of Marriage Law(2)stipulate that for the change and revocation of the divorce property division agreement,the law sets two restrictions.One is the time limit,which means that it is within one year.Second,there are cases of fraud,coercion,etc.Therefore,under normal circumstances,the divorce property division agreement cannot be arbitrarily changed or revoked after the couple divorced.At the same time,based on the consideration of protecting the interests of underage children and preventing the malicious use of the parties,the arbitrarily withdrawing of the parties should also be restricted.In exceptional circumstances,such as the existence of fraud,coercion,etc.,the property division agreement itself exists,and the right that the parties should revoke should be given at this time.The question of whether or not the child can directly claim the parent’s right to pay based on the terms of such clauses,the scholar’s dispute is mainly reflected in whether such clauses are “paid by the person being instructed” or the different determination of the "third-party interest contract".If the parties agree that the third party does not have the right to direct claim,the contract is “paid by the person being instructed”.If the parties agree that the third party has a direct right to claim,thecontract belongs to the third party’s interest contract.When the parties do not expressly stipulate whether to grant a third party the right to request,they should make a judgment based on the specific circumstances and comprehensive consideration of the nature of the contract,the purpose of the conclusion,and the trading habits.Although the husband and wife did not expressly agree when signing the agreement,they should be considered to have the right to claim the child.The purpose of the couple’s entry into the clause is to enable the child to obtain property.Since the husband and wife have the willingness to give the child’s property rights,they should also be considered to have the ability to actively obtain relief when the rights are impeded.From the point of view of the identity relationship between the parties,there is a special identity relationship between the parents and the children.Parents have full care and protection willingness for their children.From this point of view,they also prefer to think that parents are willing to give children direct claims.At the same time,in consideration of protecting children’s rights and interests,it is more reasonable to give children direct claims.