The Research Of The Law Application Of “Gift” Act In Marital Relations

There are a variety of agreements about property in marital relationship, especially the agreement which includes the obligation that one should transfer his property to another. This is regarded as the gift between husband and wife. In judicial practice, some courts consider it as marital property agreement, but some courts consider it as the donation contract. Comparing the legislation concerning marital property relations in different countries and regions, and studying a number of cases arising from judicial practice in our country,the article do some research about marital "gift". The gift contract is gratuitous,so the donee does not have contract consideration, the donor has the right to revocation. The donation of house between spouses applies to provisions of the contract Law directly in China. Although the parties of marital gift contract are husband and wife, the applications of law are the same. Clarifying the differences among gift contract, marital property agreement, the division agreement of property in a divorce is the key to confirm the gift between spouses.Marital property agreement refers to the all agreements of spouses about marital property, no matter what the form and the content are. If spouses make an agreement on the base of the identity relations, it has the character of collateral identity. The contractual marital property system is free, so spouses can sign a marital property agreement with their own mind. The true intention of the agreement is the standard to divide gift contract and marital property agreement. The gift contract can’t solve the problem existed in marital property agreement. It can’t protect transferee who has a contribution to their family and their children. It is unfair to give the right of revocation to transferor. Meanwhile, property agreement in marriage also differs from conditional gift contracts and contracts attached obligations. Because all these gift contracts can be revoked arbitrarily, but marital property agreement is not only related to properties but also related to their identity.The “gift” act between the spouses should be presumed to be marital property agreement. And the ownership of the property has been confirmed by Marriage Law. There is no need to publicity the real right because the agreement has the direct effect of alternating property rights. Unless the spouses transfer their property with a donation intention and it is gratuitous,this act would be confirmed as gift contract, which should perform the registration or grant procedure can cause the transfer of property ownership.The division agreement of property in a divorce includes spouses’ property, child-rearing and debt. Supreme People’s Court holds the view that it is civil contract to the divorce premise. This view is right to a certain extent valid, but it can’t solve lots of similar problems. And it can’t explain the reason why the gift act in a divorce can’t be revoked. The clause of gift in those agreements is not the same to gift contract, because it is not gratuitous completely. The clause of gift has a close relationship to the existence and relief of spousal relationship. If the provisions of property are used directly to such gift clauses, it will not take the spouse’s contribution into consideration, such as do all the housework. The clauses in Marriage Law judicial interpretation II which concern the division agreement of property in a divorce is based on the premise that it is a legal act of collateral identity. Whether the division agreement of property in a divorce is justice or not has a close relationship to article 39,40,41 in Marriage Law.In the marital property relations, the “gift” between spouses should consider the character of spousal relationship. The “gift” between spouses regarded as gift contract is based on the will of donation which include giving up property and gratuitous acceptance. Property agreement between spouses shall be presumed to be marital property agreement, the division agreement of property in a divorce. It can’t be revoked arbitrarily.