Research On The "Gift To The Children" Clause In Divorce Agreement

It is common in practice that a man and a woman agree to give certain property to their children in a divorce agreement,however,about the nature of the term,there is a widespread debate in theory and judicial practice.This also leads to a very confusing situation in the application of the law,such as there are distinct answers to the questions whether the obligor can revoke the "gift" clause and whether the child has the right to fulfill the claim.Divorce agreement is the result of a game of interest between men and women,and the property of both sides is treated as a whole.The integrity of divorce agreement is inherent.The "gift to the children" clause in the divorce agreement as a part of the whole,there is a complex and diverse implicating relationship between the term and the other term in divorce agreement.The implicating relationship is the reason why both have reached the "gift to their children" clause.The "gift to the Children'' clause in Divorce Agreement is the result of a balance of interests.Bothmen and women have their own interests in reaching this provision.They may also burden obligation because of this clause.It is difficult to affirm that the both have a subjective intention to act on behalf of the children.In fact,the " gift to the Children''clause in divorce agreement is an agreement between men and women to give their children property on the basis of their respective interests.Although the parents agree to "gift" property to children in divorce agreement,whether such agreement contains the meaning of "make the child claim " is often not sure,we need judge according to the purpose of the contract.Based on the identity relationship between the "gift" obligor and the child,"gift" obligor has his own interests in the acquisition of property by the child,in making the agreement,both men and women do not intend to place the child in the position of receiving assistant,the parties only want to make their children obtain property.So the "gift to the children" clause in divorce agreement should be recognized as third-party-beneficiary contract.As a third-party-beneficiary contract,the "gift to the children" clause in the divorce agreement cannot be confused with the basic relationship on which it depends.Third-party-beneficiary contract should be legally regarded as a independent act,although it must depend on the basic relationship.The reason relation of the "gift to the children" clause in divorce agreement exists in its relation with other clauses.It may be a unilateral promise made by the man or woman to the other party in order to prompt the other party to divorce as soon as possible.It may also be bilateral contract based on the relationship between the "gift to the children" clause in the divorce agreement and the other property disposal agreement.The reason relationship can be paid,can be free,not limited to the "compensation" relationship,and the specific content of the reason relationship must be judged according to the case.In the divorce agreement,the "gift to the children" clause as a third-party-beneficiary contract,its consideration relationship is a gift contract between parents and children.The gift contract also has certain particularity because of the identity relationship between the appointed person and the children.The third-party-beneficiary contract is intended only to enable the child to acquire ownership of the property,so the right to arbitrary rescission of the gift contract in aconsideration relationship shall not be exercised,which is a natural interpretation of the effect of the "gift to the children" clause in a divorce agreement.In the case of the promisee exercising the legal right to rescind a gift contract,or In the case of the creditor exercise right to rescind the consideration relationship,It can not restrict the legal right of rescission of the obligee,nor the right of rescission of the creditor,under these circumstances,the promisee have right to claims to terminate the third party interest contract,to balance the interests between the parties.In practice,the agreement to grant the child property does not only fulfill the maintenance obligation to the child,but also has its own interest consideration,which makes the the "gift to the children" clause In the divorce agreement have the nature of mixed agreement,that is,the third-party-beneficiary contract including agreement on child-rearing obligations.Although this clause has the nature of mixed agreement,but based on the purpose of both men and women,the third-party-beneficiary contract is still the main nature of the "gift to the children" clause in the divorce agreement.The "gift to the children" clause in the divorce agreement as a third-party-beneficiary contract,the party's rescission right is its contract itself inherent right.but base on the obligor and the third party's identity relationship,we should recognize that the third-party-beneficiary contract party's revocation right may only be exercised by the male and female parties.Both men and women may agree to cancel the contract for the benefit of the child after the child expressing the intention to accept the benefit.The child acquires the right to claim for performance based on the "gift to the children" clause in the divorce agreement,which is the right of the obligatory claim.The limitation of action should be applied,but in the case that the child already enter upon the property,the limitation of action is not applicable.ln the case that the child and the obligor live together,out of the protection of the kinship ethics,the stipulation about suspension of action limitation should be applied.About the question that whether the child's claim for performance can exclude the enforcement of the external money creditor,we should consider comprehensively these factor: whether the parties have malicious collusion to damage the external creditor's rights,the state ofpossession of the disputed property,the time of obtaining the creditor's rights and the implicating relationship between the divorce property treatment agreement,etc.If external creditors exercise right of rescission because the "gift to the children" clause in the divorce agreement damage to his prior right,in order to maintain the stability of the divorce agreement,the legal effect of the creditor's exercise of the right of revocation shall allow the child or promisee to perform obligations to creditors to retain the property.