A Study On The Legal Application Of The Clause "Gift Children’s Property" In My Country’s Divorce Agreement

It is very common for couples to “gave” property to their children in the divorce agreement.After the husband and wife dissolve their marriage,due to many reasons,the "donor" failed to fulfill the obligation to change the registration,which caused various disputes between the husband and wife,children,and external creditors.This article mainly studies the nature and effectiveness of the "grant children’s property" clause in the divorce agreement,so as to explore the legal application of various disputes,in order to achieve a balance of interests between husband and wife,children,and external creditors.Husband and wife usually need to go through constant negotiation and game to reach an agreement to terminate the relationship and dispose of all the property at once.In other words,this agreement is an arrangement for the personal relationship and property relationship of the couple after the dissolution of the marriage.This not only includes the dissolution of the marriage relationship between the two parties,child support,and debt obligations,but may even consider the faults and damages of the two parties during the marriage relationship.Among them,the agreement on donating property to children and other agreements are independent and interdependent,forming a unity of me in you and you in me,which has a strong integrity.This kind of agreement is essentially different from the gift contract.Although it is mostly expressed in words of "giving to children" and "property belongs to the children",it lacks in essence the meaning of gift.Such clauses should be fully considered in the context of complex divorce.Divorce agreement is a compound agreement that includes both personal relationship and property relationship.No matter what kind of divorce agreement,it is an arrangement for the person and property of the couple after the dissolution of the marriage relationship.This arrangement can learn from the consequences of the termination of the contract and regard it as a liquidation relationship.The treatment of the property part is the property liquidation relationship.The property liquidation relationship is more complicated,and the content is more diversified.It may include the division of common property and the agreement on child support,or it may include compensation for the family with more burdens and help for the party in difficulty.Therefore,behind the formation of this clause is not only the consideration of children’s issues,but also a comprehensive consideration of a series of complex factors.In nature,this clause should belong to the property liquidation agreement under the dissolution of the marital relationship of the husband and wife.In judicial practice,there are often parties requesting cancellation on the grounds that they have repented and the agreement is obviously unfair,and even creditors have requested cancellation on the grounds that this clause harms their claims.In principle,such clauses are irrevocable.First of all,when the couple signs a divorce agreement,the meaning is true and flawless.This agreement does not violate the law and should be binding on both parties.Secondly,the divorce property liquidation agreement has integral characteristics.When the marriage relationship has been dissolved,the child gift clause cannot be revoked alone.Third,based on the principle of good faith,the parties are not allowed to arbitrarily revoke.If the parties are allowed to withdraw at will,it will encourage a trend that violates good faith with the intention to maliciously embezzle property through divorce.Finally,from the perspective of protecting the interests of underage children,the parties are also not allowed to withdraw at will.However,it can be revoked when the party concerned expresses a defect,reaches a new agreement,and meets the circumstances of "malicious evasion of debts".It should be noted that the revocation of this clause shall not affect other agreements related to the identity relationship in the agreement,such as visitation,fostering,etc.When a child’s parents fail to perform the payment stipulated in the divorce agreement,the child may have the right to directly request performance in accordance with the gift clause of the divorce agreement.First of all,granting children the right to petition is in line with the true meaning of the parties when they sign the divorce agreement,is a kind of respect for the parties’ consensus,and does not infringe the rights and interests of both parties.Second,granting children the right to make independent claims is more conducive to protecting the rights and interests of children.Children can skip the parties to directly request the obligor to perform,which simplifies the rights protection procedures,while also safeguarding the children’s own interests and reducing their risks.Finally,granting children the right to make independent claims is also in line with the usual practice of judicial practice.In judicial practice,the courts also generally grant children the right of independent petition when hearing such cases.The gift of children clause in the divorce agreement does not have the effect of changes in property rights.Children’s right to claim the house agreed to be paid by their parents is only the right to claim.Before the change is registered,the child’s right to claim generally cannot exclude the compulsory enforcement by the creditor.When determining whether the child has the right to exclude the creditor ’ s compulsory execution,it is necessary to combine the actual situation of our country,in the individual case,the time when the donation clause was formed,the time when the rights of the applicant for execution were formed,the nature of the right for the applicant for execution,and the party did not handle the transfer Factors such as the degree of fault,the basic guarantee of the children’s life,and giving priority to children’s claims when necessary,and affirming the children’s right to transfer ownership can exclude creditors’ compulsory execution.