Study On The Effectiveness Of Divorce Agreement

This article mainly studies the validity of the divorce agreement.It was divided into three parts: divorce ? property division and child support.The article consists of five parts:The first part studies the nature and development of the divorce agreement.The second part studies the identity behavior and property behavior in the divorce agreement.The third part studies the effectiveness of the divorce action.The fourth part studies the effectiveness of property behavior.The fifth part studies the effectiveness of child support provisions.Chapter One and Two analyze four theories about the nature of divorce agreement.The doctrine of identity relations only holds if there is no division of property.The conditional contract cannot be justified.Mixed contract theory puts too much emphasis on the independence of property behavior and identity behavior.And the compound agreement theory overemphasizes the relationship between property behavior and identity behavior.Identity behavior and property behavior can be distinguished in concept and content.Besides,the principle of distinction is also pursued in judicial interpretation and trial practice.The primary value of identity behavior is freedom of divorce.And the primary value of property behavior is the principle of self-government,honesty,credibility and fairness.Identity behavior and property behavior have independence that has institutional support.The article puts forward legislative suggestions for the problems existing in the court's application of the marriage law and puts forward legislative proposals.Chapter Three first points out the advantages of the divorce agreement.Admission of divorce by agreement becomes a general trend.The dissolution clause in the divorce agreement shall not be effective until the divorce agreement is registered.Although the identity behavior is particular,it is still the declaration of will.In practice,there are four types of defect of declaration.Defect of declaration of divorce by agreement may be permitted by the law of marriage.General provisions of civil law can be applied to those that cannot be resolved within the marriage law.The effectiveness of collusion agreement divorce should be judged by its appearance.Divorce agreement of true intention reservation should be effective.Divorce agreement under duress is revocable.Divorce agreement under fraudulent can also be revoked.Chapter four studies the effect of the property division clause.If there is no third party involved in the transaction,the declaration of will is the first priority.The property division clause in the related divorce agreement takes effect when the registration is completed.The property division clause of the independent divorce agreement can take effect at the time of signing.The effect type of the property division clause shall be the effect of the obligatory right.Divorce agreement shall belong to change based on the juristic act.The internal effect of the property division agreement shall be effective as a whole.It may refer to the application of article 19 of the marriage law.Chapter five first studies the validity of the dependency clause.The article then studies the validity of the clause of property ownership to children.The effect of the dependency clause is to determine the immediate supporter.The second effect is to ensure the right of visitation.The third effect is to guarantee the payment of maintenance fee.The direct supporter as determined by the agreement may be revoked or invalid for violating the maximization of the interests of the child that is not provided by the law at present.Breast-feeding children raised by father directly might be detrimental.The wishes of minor children over the age of 8 shall be respected.The scope of the visitation right should not be limited to the child's parents.Support fee agreement should be fully free,because of the marriage law article 37 for protection.The clause of property ownership to children should not be interpreted as a gift.The creditor may exercise the revocation right if the property belonging to the child is unreasonably higher than the maintenance demand and affects the obligor's liable property.