Study On The Legal Effect Of House Clause Of Gift To Children In Divorce Agreement

In recent years,with the increase of divorce rate,the issues related to gift in divorce agreement have emerged one after another.The main points of dispute are as follows:the nature of the house clause of gift from parents in divorce agreement;The establishment,effective time and legal effect after coming into force of the gift clause in the divorce agreement;Whether the parents can revoke the gift and whether the children have the right to perform the gift to their parents.It is of great significance to clarify these problems.There are three points of view on the determination of the nature of the gift housing clause: the theory of the contract of the third party with interest,the theory of payment through the act of instruction,and the theory of gift.The nature of the provision of house gift to children is consistent with the theory of third party contract.This theory reflects the disposition of property of both parties in the divorce agreement and sets the rights for the third party.The establishment,effective time and validity of the terms of the gift house are of great significance for the husband and wife to exercise their rights.As a part of the divorce agreement,the provisions of the gift of housing to children are consistent with the establishment of the divorce agreement,the effective time and the legal effect after the effective.There are two views on the time of divorce settlement: this is true when the meaning is consistent and incorporation at the time of marriage registration.A divorce agreement is a contract between husband and wife.It comes into force when both parties agree.There are two opinions that the divorce agreement will come into force: it takes effect when there is agreement of intention and effective at the time of divorce registration.The divorce agreement will take effect only after the civil affairs department completes the registration procedures.The legal effect after the divorce agreement comes into effect affects the confirmation of the right of housing ownership,which mainly has two viewpoints: the validity of creditor’s right and the validity of real right.According to the real right change of real estate ownership must be registered rules,not registered before the ownership will not change.As for whether the donator’s exercise of the revocation right can be supported after the donator has made the gift commitment in the divorce agreement,there are two views,namely the approving and the opposing.According to the principle of good faith and the principle of fairness in civil law,it is not allowed to revoke a promise at will.Exceptional circumstances may allow the revocation of the gift,only in the case of fraud,duress,or special circumstances of difficulty in performance.When one or both parents refuse to perform the promised gift after the divorce agreement comes into effect,there are two views on whether the children’s right of performance can be exercised or not.Children as the third party in the contract,when the agreement stipulates that children can request their parents to perform the gift,children have the independent right to request their parents to perform the obligation of gift,if there is no agreement,children do not enjoy the right to request performance.When the children’s performance of the right of claim and the right of inheritance conflict,according to the theory that the heir should not only inherit the right but also inherit the obligation,as the donee,the right of claim of the children should be realized first.When the successor has completed the inheritance of the estate,the creditors as the decedent have the right to request the successor to handle the house transfer procedures for them;If the children do not begin to inherit the estate,the children can request all the heirs or the estate administrator to handle the house transfer procedures for them.When there is a conflict between a child’s right of claim and the creditor’s right of claim,the question of which right should be protected in priority should be determined according to the sequence of the creditor’s right and the gift.If the creditor’s right occurred during the marriage relationship and was formed before the gift of property to the child,the creditor’s right should be protected in priority.When the creditor’s right occurred after the signing of a divorce agreement and before the registration and the decision to grant a house to a child predates the formation of a claim,there is no priority for the children to fulfill the right of claim and the right of debt claim.