Effectiveness Of The Divorce Agreement

The text consists of three parts, each part consists of a chapter: the first part summarize the conception、the nature and the apply law of the divorce agreement; the second part studies the effectiveness of the property part.The first chapter briefly introduces the conception、the nature and the apply law of the divorce agreement. The divorce agreement exists in registered and contentious dicorce proceedings; it includes the problems of voluntary divorce, child support and division of property and so on. Divorce agreement is a written agreement that the husband and wife agree to divorce and deal with division of property, debt disputes and other matters. Divorce agreement can be divided into three types: agreement reached before divorce, registered divorce agreement and the agreement made by court. The court mediation reached a divorce agreement in practice and effective stress on disputes, this paper will not discuss. This paper is mainly about the validity of registration divorce agreement. The paper adopts the viewpoint is the divorce agreement is a composite protocol, consists of two parts: the identity behavior and property part. Only the formation of effective identity behavior of legal acts with only take effect. The nature of the divorce agreement is a generalized identity legal behavior. On the application of the law, the identity behavior of the divorce agreement should be applicable "marriage law" and related judicial interpretation, and divorce protocol in the division of property in the marriage law and the judicial interpretation have clearly defined, should give priority to apply for "marriage law" and relevant judicial interpretations, if relative law no relevant provisions, can be adapted to other civil law.The second chapter mainly studies the effectiveness of status acts of the divorce agreement. As stated in first part, the divorce agreement is a legal act of identity, which inlundes status act and property acts.The first section is mainly about the effect of the non registered divorce agreement, that is, whether the court can directly apply the pre litigation divorce agreement. Divorce as an identity of the legal act, is a must type behavior, shall be registered in the administrative organs or the court decision. If the couple did not go to divorce registration, the identity behavior would not take effect. That means unregistered divorce agreement has no legal effect. So the court can not directly applicable in the judgment. In our country the Supreme People’s Court on Several Issues concerning the application < the People’s Republic of China Marriage Law > interpretation(III)(hereinafter referred to as the “marriage law” judicial interpretation(III) clearly defined before litigation divorce agreement because of the identity of the relationship is not lifted and do not take effect. But the divorce agreement not useless before litigation, practice, the court in the judgment will will be the content of the agreement in the division of property in divorce before litigation divorce agreement can be as the feelings of both husband and wife burst basis and refer to the appropriate before litigation.The second section discusses one or both spouses to lift identity relationship mean defects, divorce is in effect, namely the effect of false divorce. False divorce for collusion false divorce, meaning retained false divorce and divorce fraud, but is one side or double direction of the marriage registration office make false divorce, said the administrative organs receive divorce certificates of behavior. China said the parties to foreign made declaration shall prevail. Seek divorce cases, divorce registration can not be revoked. Fraud divorce case, to protect the third people’s interest, in principle, do not allow to revoke the registration of divorce, unless the Civil Affairs Bureau of serious violation of the procedures, and the parties did not cheat in good faith and third people. But in the dismemberment of property, the parties may be fraudulent divorce on the grounds of fraud requirements change or cancellation of divorce division of property in a year. Collusion of divorce the parties can not claim alteration or revocation of divorce property division agreement. When the deal damage to the state, the collective or the third people benefit should be invalid.The third chapter introduced the property part. Based on cases analysis, the chapter chooses to analyze four problems.In the first section, we discuss the multiple copies of the divorce agreement effectiveness: the parties reached the property agreement when they are still in conjugal. The parties reached a new agreement after they terminate their marriage. By finding the case found that the court in the judgment, if the divorce agreement reached before the divorce and the registration of the divorce agreement on the property partition does not conflict, it is supported by several divorce agreement. After the divorce agreement reached by the divorce agreement and the contents of the registration of the divorce agreement, the property agreement made after the divorce, the two sides have binding force. If the property agreement signed after the divorce is not consistent with the registered divorce. In between the parties after the signing of the agreement on the partitioning of property shall prevail; divorce agreement between the parties and the third person to register shall prevail. But if parties have fulfilled the agreement. After divorcing reached the agreement on the partitioning of property is a new protocol, is not based on their identity, as is the gift of the contract, the party may withdraw.In the second section, we discuss the nature of the terms and conditions of the property belonging to the other party of the property belonging to the other party in the divorce agreement. This article believes that the husband and wife will be the property of one party may be on the other side of the emotional, economic compensation or damage compensation, does not meet the gift of free, so can not simply think that this is a gift. In practice, the court in the judgment, even if the gift is considered to be a gift with moral obligations, in addition to fraud, coercion, can not be arbitrarily revoked. If you allow any revocation, contrary to the principle of good faith and the principle of fairness.The third section discusses the effect of the divorce agreement on the third party. First, it discusses the question of whether the maintenance fee can be guaranteed. The courts respect the autonomy of the parties, and support the guarantee of the special nature of the debt. According to the theory of civil law in Taiwan, it is not to perform, but to assume responsibility. After the discussion of the property division agreement will be property(real estate) attributable to the effectiveness of their children. Most scholars believe that it is a gift to the children, and with a moral obligation, can not be arbitrarily revoked. We disagree with this view, think the lack of children receiving a gift meaning, does not meet the elements of the gift. In this paper, based on the theory of Mr. Shi Shangkuan, the contract is to be paid to the third party. There is only one promise, that one direction the other party has promised to the children of their own property shares, is the "payment through the order" of the contract. Due to the lack of promised people of the promise of their children, children can not request, so in case one party retracts, another party can be sued the court to require the other party to perform in accordance with the contents of the divorce agreement. If both sides can negotiate change back, division of property in a divorce agreement agreement, without their consent.The fourth section discusses the division of property in terms of real estate contract can directly cause the change of real right. According to the collected cases, this issue is controversial, appeared in court on such cases sentence phenomenon. This article believes that the divorce agreement can directly cause the change of real property right, although the house has not been registered, but the ownership has changed.