Study On The Effectiveness Of Property Segmentation In Divorce Agreement

There are two ways to divorce,one is administrative registration divorce,the other is litigation divorce,and one of the necessary conditions for administrative registration divorce is that the husband and wife have already reached consensus in the divorce agreement on the issue of child support,the division of property and so on.When the divorce form is administrative registration,the husband and wife always encounter the problem of the disposal of the house property in the division of property.It is usually agreed by both parties that the property is owned by one of the spouses or owned by the children.After divorce,the divided property often fails to go through the registration change procedure for various reasons,which will lead to the lawsuit against the execution brought by the third party.Because such disputes could be solved according to different legal norms,such as the Marriage Law,the Property Law,and so on,so the judges have shown different tendencies in the choice of the application of the law,thus directly giving rise to the phenomenon of "different judgments in the same case".Based on the case in judicial practice,this paper analyzes the legal relationship of shared property division from a theoretical perspective,reviews the theory that the property division agreement only has the right to claim of creditor's right or the right of expectation of real right,and holds that the divorce dispossession agreement has the effect to change the ownership of the property directly,which can be used against the general creditors after divorce.The divorce agreement refered in the text means an agreement which has been registered for the record in the civil affairs department before issuing the divorce certificate,the divorce property division agreement refers to the property division clause embedded in the divorce agreement,and the divided property is the joint property of the husband and wife.This paper contains four parts.The first part starts from the typical case in judicial practice,summarizes the problems and controversial focus in the jurisprudence,leads to the fact that the parties to the divorce agreement have what kind of rights,how to determine the legal relationship of the property owned by the children,and whether the implementation of the divorce agreement can be blocked,and explains the reasons for the existence of the problem.The second part introduces the four kinds of execution objection cases and the results of the judgment.The third part analyzes the right attribute of the shared house property,expounds the basis and reasons for the change of real right,and thus draws the conclusion that the provision about the house property in the divorce agreement could change the ownership of the house property directly.The fourth part analyzes the relevant legal relationship when the house property is owned by the children,adopting the view point of property liquidation,reviewing the defects of the gift theory and the third party contract theory.The fifth part raises two kinds of opinions,theoretical and practical,so as to provide suggestions for the unified judicial trial.