A Study Of The Legal Nature Of The Child Property Gift Clause In Divorce Agreements

It is a relatively common phenomenon that parties in a divorce agreement agree to gift specific property to their children,but there is a great controversy in the theoretical and judicial circles over the understanding of the legal nature of the property clause of gift to children in divorce agreements.It is undoubtedly of great theoretical and practical significance to clarify and study the legal nature of the property clause of gift to children in divorce agreements.This paper is divided into four parts,except for the introductory and concluding parts:The first part is "Statistics of Judicial Decisions on Disputes over Gifts of Children’s Property in Divorce Agreements".Through the keyword search and other restrictions of the "Jufa Case" database,we obtained a sample of judicial decisions from January 1,2013 to January 1,2023 on disputes over gifts of children’s property in divorce agreements,and 260 valid cases were obtained through manual screening.Among the cases in which the original divorcing parties requested to exercise the right of revocation,the courts determined a total of 13 categories of the nature of the terms,such as ordinary gift,special gift,joint gift and other gift contracts,and other nature such as conditions of divorce,contracts for the benefit of third parties,and property division terms.The number of decisions that supported and did not adopt the opinion of the original divorcing party to exercise the right of revocation were 13 and 167,respectively.It can be seen that the courts’ determination of the nature of the clauses is extremely confusing,and most of the courts rejected the original divorced parties’ petition to exercise the right of avoidance on the grounds that the child gift clause is not an ordinary gift contract.In the cases where the creditors requested to exercise the right of avoidance,the courts determined the nature of the child gift clauses in four categories,including ordinary gift contracts,conditional gifts,gifts involving identity relations and property division clauses.There were 78 and 2 cases that supported and rejected the creditor’s request for avoidance rights,respectively.Compared with the cases in which the original divorcee requested to exercise the right of avoidance,there was a higher uniformity in the courts’ determination of the nature of the clauses in the cases in which the creditors requested to exercise the right of avoidance,and most of the courts supported the creditors’ requests to exercise the right of avoidance.The second part is "Reviewing the Nature of the Child Property Grant Clause in Divorce Agreements.On the nature of the child gift clause,the doctrines proposed in the academic or judicial practice include: general gift contract,"special gift",gift contract with moral obligation,conditional gift contract,purposive gift contract,notarized gift by analogy,joint gift and contract for the benefit of third parties,but these However,all of these doctrines are unreasonable and therefore are not sufficient for adoption.The third part is the characterization of the gift of children’s property in the divorce agreement.The child gift clause is an indirect gift in the gift relationship and is part of the property division agreement.On the one hand,although the child gift clause is gratuitous,it is an indirect gift of a different nature from ordinary gifts,and the provisions of the Civil Code on the right to revoke a gift at will are not applicable.On the other hand,the child gift clause is part of the property division agreement in the divorce agreement,and the relevant provisions of Article70 of the Judicial Interpretation of the Marriage and Family Part I shall apply in the event that there are express provisions on the right of revocation of the property division clause in the judicial interpretation.The fourth part of the article is "Interpretation of Child Property Grant Provisions in Divorce Agreements".Under the "indirect gift as part of the property settlement agreement",the original divorcing party may not revoke the child gift clause arbitrarily,but may exercise the right of revocation in cases of fraud or duress.The supplemental divorce agreement is not an integral part of the divorce agreement,and the gift of children agreed upon in the agreement is subject to the at-will right of revocation of the gift.The creditors of both parties to the original divorce or one of them may exercise the right of revocation to revoke the child gift clause if the legal elements are met,and the scope of revocability shall be limited to the debtor’s share of the common property.