On The Nature And Application Of "Bestow Property On Children" Clause In Divorce Agreement

In the divorce agreement,it is a common practice for the husband and wife to "bestow" the property of one party or both parties to their children,among which "property bestowal" is particularly common.After the divorce agreement comes into effect,the "donor" does not assist in the registration of change of ownership,thus causing a variety of disputes between husband and wife,children and external creditors.The main object of this study is the nature of the "bestow property on children" clause in the divorce agreement,and then explore the legal application of various disputes in order to achieve the balance of interests.In addition to the introduction and conclusion,this paper is divided into five chapters.The first chapter is about the practice of the "bestow property on children" in the divorce agreement,to distinguish between the practice of the gift property terms of the different types,and analyzes the background and reason on related disputes,thus put forward in this paper,we study the main problem is how to decided that divorce agreement "bestow property on children" in terms of properties and applicable law.This chapter summarizes four kinds of disputes caused by the "bestow property on children" clause in the divorce agreement: the "donor" revocation right dispute,performance dispute,execution objection dispute,and creditor's revocation right dispute.In practice,the dispute about whether the "donor" can revoke the gift arbitrarily is the most controversial.The mainstream judicial view has graduallychanged from recognizing it as a general gift to affirming the right of arbitrary revocation,to emphasizing the entirety of the divorce agreement and thus excluding the application of the right of arbitrary revocation.The second chapter is the discussion of the divorce agreement "bestow property on children" provisions of the qualitative.Before the qualitative discussion,it is clarified that this agreement is the property behavior related to the identity relationship,and there is room for the application of the contract law when the identity law is not clearly specified.On this premise,three theories about the qualitative nature of the clause in practice are summarized: the theory of gift contract,the theory of divorce property division agreement for payment by instruction,and the theory of divorce property liquidation agreement for the benefit of a third party.First of all,article 6 of the third interpretation of the marriage law is excluded.Not only is the rationality of this article questionable,but the gift clause in the divorce agreement is different from the gift during the marriage relationship because it is in the special liquidation stage of divorce property.Next,when applying "contract law" in the special donative regulation directly,"the donative of the nature of moral obligation","the donative that adds agreement to divorce condition","the donative that adds obligation" cannot explain the necessity that restricts random revocation right.In the qualitative analysis,this clause should be included in the whole divorce agreement.The "bestow property on children" clause refers to the agreement reached by the couple to liquidate the property at the time of dissolution of marriage,in which the children are the beneficiaries.Therefore,this clause should be regarded as an altruistic divorce property liquidation agreement.The third chapter is to discuss the tripartite legal relationship between husband and wife and children when the clause is defined as altruistic settlement agreement of divorce property.In the divorce agreement for the benefit of the third party,the compensation relationship between husband and wife is a divorce property liquidation relationship.This kind of property liquidation relationship is reflected in the implication between the agreement of property transfer and the agreement of divorce,the arrangement of children's raising,the joint debt undertaking,the property division,and in special cases,the agreement of divorce damage compensation,the agreement of divorce compensation,and the appropriate help when one party is in difficulty.Either side or both sides of husband and wife promised each other to personal property to assign common property of husband and wife to their children,based on the compensation relationship between both sides,any one party behavior should be restricted because of the other party,once the divorce agreement effective and there is no defect in the circumstances,either party shall not unilaterally exercise the alteration,cancellation right.With regard to the issue of whether the husband and wife can agree to revoke the contract afterwards,before the children are unaware of it and have not made any express or implied acceptance behavior,the husband and wife have the right to change or revoke the contract after reaching the agreement,but after the children accept and generate interest expectation,the parties' right to change or revoke shall be limited.As for the right to claim for the performance of children,it is necessary to explore the real intention of the party concerned when there is no clear agreement between the parties.In the divorce agreement,the intention of the party concerned is not simply to shorten the payment.From the point of view of the purpose of the contract,the agreement is also to provide security for the children's life after divorce.Therefore,giving children the right to directly perform claims does not violate the original intention of the party concerned,nor does it infringe on the interests of the party concerned,and is more conducive to improving efficiency.The fourth chapter discusses the nature and effectiveness of the child donation clause in the divorce agreement when the external creditors are involved.If the husband and wife agree to transfer the property to the children in the divorce agreement,the creditor's right of claim of the children cannot exclude the creditor's enforcement generally before the implementation of the change registration.However,considering the actual situation in China,the nature of creditor's rights,external creditor's subjective goodwill,the time of creditor's rights formation,the failure to register the change of fault party and whether the parties to the divorce agreementhave the malice of avoiding debts should be taken into comprehensive consideration.When the property involved in the case is the only housing related to the children's survival interests,the enforcement can be excluded by affirming the children's right to performance under special circumstances.For a divorce after the debt is formed,when judging whether the gift clause in the divorce agreement can be revoked,if the value of the transferred property does not exceed the normal range of legal maintenance due,it is a normal behavior of identity property and cannot be revoked.If the value of the transferred property,such as house and equity,exceeds the normal range of the legal maintenance fee due,the excess part shall be the early performance of the unmatured debt or the analogy shall be applied to "transfer at an unreasonably low price",and the creditor may apply for cancellation.To the debt that forms after divorce,deal with the action that transfer a household registers later,because this action is debt pay off,creditor does not have cancel authority commonly,unless "donative person" have the malice that avoids debt apparently.The fifth chapter is the divorce agreement to fulfill its obligations for the exclusions "unfair" can also be used to cancel the reason for divorce,but in the concrete judgement fair division of property or not should realize that the particularity of identity protocol,combined with the concrete case,comprehensive care for children and a wife Shared interests,to take care of the no-fault party,debt situation,property source,childcare arrangements,husband and wife to family contribution aspects determine whether fair,rather than the simple principle of equivalent exchange.When the principle of change of circumstances is applied,the significant deterioration of the couple's financial situation can be used as a reason for the exclusion of the parents from the payment of the children when the property is enforced due to the joint debts of the couple.However,the failure of children to perform their maintenance obligations shall not be considered as a cause for change of circumstances,and shall be dealt with separately in the maintenance payment relationship.