| During the period of marriage,based on various considerations,husband and wife may sign separation agreement to distribute the property of husband and wife on the basis of maintaining the relationship.After examining the legal nature of this agreement,it is not the agreement of divorce property division,but the agreement of marriage property division.As the marriage law of our country implements the original matrimonial property system,the agreement on the division of matrimonial property belongs to the matrimonial property system contract stipulated in Article 19 of the marriage law of our country,which is legal and effective.Husband and wife property system contract can directly cause the change of real estate property right without the need for change registration(publicity),which belongs to the change of real estate property right not based on legal acts.The change of real right caused by the property system contract of husband and wife is based on the principle of public notice,so it will not damage the transaction safety and the interests of the third party in good faith.The ownership and change of the real right belong to the common adjustment scope of the rules of the real right law and the property system of husband and wife.There is a cross between them in terms of legal provisions.However,due to their different legislative purposes,concepts and applicable subjects,this kind of conflict belongs to non substantive conflict.When husband and wife sign the property system contract,the real right obtained by the unregistered party belongs to the factual real right,and its status belongs to the factual real right person.Compared with the legal real right person,the factual real right person should be protected first.Legal real right and factual real right can coexist on the same real estate,but the two kinds of real right can not distinguish the specific proportion on the same real estate. |
