The Study On Effect Of The Gift-to-Children Clause In The Divorce Agreement

The terms of a gift to the children in a divorce agreement are a written agreement between the spouses who voluntarily give one or both of their property as a gift to their children in the process of divorce.As an important part of the divorce agreement,the gift clause involves the division of property and usually for the purpose of the dissolution of marriage.It implies the fulfillment of the parental obligations of the parent,and the granting of such articles is both peculiar to identity and purpose.At the same time,such provisions contain certain moral obligations,and therefore they can not be simply regarded as a general gift contract,shall not be applied to the contract on the right to arbitrary revocation of the provisions.In our judicial practice,a large number of people sued to the court,requesting to revoke the gift to their children,after reaching the purpose of divorce.This kind of behavior is contrary to the principle of good faith in modern society,and will cause secondary harm to the children who receive the gift.At the same time,it may also make it happen that some people with ulterior motives try to use these terms to achieve the purpose of divorce rapidly,and then withdraw their promise.The author argues that the gift to the children in a divorce agreement is different from that of a general gift,the former is both peculiar to identity and purpose.If we apply the right of arbitrary revocation in that case,it may seriously damage the interests of the children and form a negative social effect;In view of the need to balance the rights and obligations,it is also necessary to give the donor the right of revocation in a particular situation and in certain period of time.This paper introduces the different theories of the gift clause to children in the divorce agreement,about its legal nature and the validity.Finally,points out the application of the gift clause and the solution under the current system.This paper is divided into five parts.The first part,selects the representative of the two referee cases and summarizes the focus of the dispute respectively.The second part,analyzes the main viewpoints of the nature of the donation,including "the General Gift","the Conditional Gift","the Gift Based on the Relationship",”The Third Person Profit Contract”,then makes a comment one by one.In the third part,examines the typical foreign countries and regions,such as Japan,Taiwan and Germany,then provides reference for solving the problem of giving gifts to children.The fourth part,summarizes the problems of the gift clause that may be encountered in the practical application,including,the different types of gift clause are mixed;the donor's statutory revocation rights are not protected;the request for change or revocation of the application is too narrow;the explanation to moral-obligation's gift is different;whether the child has the right to request the fulfillment is still controversial.For these questions,which this section will analyze one by one.The fifth part,proposes some legislative recommendations in five aspects which include: definite accurately two types of the gift clause;clear the statutory right to revoke;add provisions to request to change the content of the gift;to extend the interpretation of the moral-obligation contract;to give the children right to sue.