A Study Of The "gift Of Property To Minor Children" Clause In Divorce Agreements

Influenced by the traditional Chinese parent-child ethic,in divorce cases involving minor children,the spouses often agree directly to divide the property between the minor children,usually in the divorce agreement with the phrase "will...In divorce agreements,this is usually expressed as a "gift to the children".However,after the divorce,the parties concerned have repudiated the way in which the property was initially handled,and have treated the transfer of ownership negatively,even going to court to demand that the "gift" be revoked or that the property be disposed of to others without permission,which has led to many legal disputes.In order to solve the dilemma in practice,this article will discuss and summarise the legal characterisation of the agreement and its legal consequences based on an exhaustive review of the relevant cases.There are different views in theory and judicial practice on the definition of the legal nature of the clause "gift of property to minor children" in divorce agreements.This article considers that although such a clause is called a "gift",it lacks the meaning of a gift.As a sub-agreement of the divorce agreement,this article argues that it should not be defined as a gift agreement but rather as a contract for the genuine benefit of a third party.The spouses’ designation of the object of performance and the creation of an interest for a specific third party are consistent with the construction of a genuine interest third party contract.More importantly,the characterisation of the contract as a genuine interest third party contract directly confers an independent right of claim on the children,which is in line with the true intention of the parties in entering into the contract and strictly follows the purpose and spirit of the protection of the weak in the chapter on marriage and family and protects the legal rights of the minor children.After clarifying the nature of this clause,this article discusses the legal effects of this clause both internally and externally.In terms of the "internal" legal effects,the article argues that the clause only has "creditorial effects" and that the minor children cannot directly enjoy the ownership of the property by virtue of the agreement.In general,a couple cannot revoke a ’gift’,but if one of the parties to the ’gift’ agreement does commit fraud or duress,the agreement may be revoked.In terms of the legal effect of the "external" agreement,firstly,on the question of whether the external creditor has the right of revocation,if the external claim is established first,the creditor can generally claim that the agreement is fraudulent,but if the agreement relates to the payment of maintenance,the circumstances of the parties’ disposal of the property and the value of the property disposed of should be taken into account.Secondly,on the question of whether the children can prevent the creditor from enforcing the agreement through an objection to enforcement,this article considers that the children’s right to claim a change of ownership based on the parents’ altruistic agreement is more worthy of protection and has priority over other pecuniary claims if certain conditions are met.