Research On The Legal Effects Of The Clause Of Property Gift To Children In Divorce Agreements

If a couple decides to divorce,they must reach an agreement on the distribution of property and the right to custody and visit their children.Especially in today’s society,along with the rising of the house price,the house has become more and more valuable,and how the distribution of real estate has become a difficult issue for husband and wife to reach an agreement when they divorce.If the issue of property division is not resolved,the divorce process will be hindered,making it difficult for the couple to achieve the purpose of divorce.Therefore,in order to reduce the trouble brought by property disputes,end the marriage relationship as soon as possible,but also to make up for the divorce to the children’s debt,when the husband and wife can not reach an agreement on the property,they will choose to give the property to their children.In recent years,with more and more of our country divorced,it has become very common that husband and wife agree to give property to their children in divorce agreement,which causes various kinds of judicial disputes.In real life,there are often cases where the donor refuses to help or even transfer the house to his children for various reasons after the couple dissolves the marriage relationship.The name on the real estate register does not match the actual owner of the house,which causes all kinds of disputes between husband and wife,between parents and children,between outside creditors and parents and between children.In Chinese law,there is no clear legal provision on how to deal with this kind of case,which leads to the phenomenon of different judgment and different reasoning in the same case repeatedly.Divorce agreement is an inseparable agreement,in which each clause is closely related,and the formulation of each clause will produce complementary effect to the content of other clauses.Of course,the property gift clause is no exception,since it is formed in the divorce settlement,it does not exist on its own.Based on the particularity of this clause,it is more reasonable to define its nature as divorce settlement agreement.In this basic research on the legal effect of the provision of property gift to children agreed in the divorce agreement,analysis of the legal logic of existing cases,hoping to make the provision involved in the interests of the relevant personnel,especially the husband and wife,the intended children and external creditors can be effectively protected.First of all,regarding the establishment and effective time of the property gift to children clause,it is considered that the clause shall be established from the date when both parties in the divorce agreement reach a consensus on the behavior of the property gift.But the establishment does not take effect immediately,because the property gift children clause is the husband and wife divorce agreement attached to the clause,is the rights and obligations agreed in the divorce agreement,so the content of this agreement is generally and divorce agreement at the same time.The gift clause can be effective only after the couple go to the marriage registration office for divorce procedures or the court makes a divorce judgment to make the divorce agreement effective.When this clause comes into force,it will create a bond between the parties to the divorce settlement.Secondly,in view of the situation that often happens in judicial practice,that is,after the dissolution of the marriage relationship,one of the parties to the divorce agreement goes back on his word and files a lawsuit to the court to ask for the cancellation of the gift before for various reasons.Based on the integrity of the divorce agreement and the principle of good faith,the clause is generally irrevocable.However,if it is found that there is fraud,coercion,or the donated children are not the donor’s own children,if not revocation will lead to obvious injustice,it is considered that the parties can be appropriately allowed to revoke it based on the actual situation.In addition,only two divorcees are involved in the provision.Because of the relativity of the contract,this clause only applies to divorced couples.If a party to the divorce agreement does not assist in the registration of the change,the intended child,as a third party outside the divorce agreement,has no claim.If the donor does not actively perform its obligations or even refuses to perform its obligations,the interests of the intended children may be protected by a limited right of revocation or by the nondefaulting party to the divorce settlement.Finally,the interests of external creditors should be protected in judicial practice.If the property gift to children clause comes into effect after the end of the marriage relationship,but the house has not been transferred to the children,that is,the ownership of the house has not changed,then at this time the divorce settlement claims of the parties to the divorce agreement cannot exclude the compulsory execution of creditors.However,because the actual situation of some cases in real life will be more complex,so the judgment can not be absolute,to analyze the specific problems.Considering comprehensively the establishment time and effective time of the property gift to children clause and the sequence of the debt formation time,the reasons why the house has not gone through the property registration procedures in time,the basic security of the life of the donated children,especially the minor children,and other factors,it is certain that the divorce liquidation creditor’s right can exclude the compulsory execution of the creditor when necessary.In the process of case study,when deciding whether an outside creditor should be allowed to Sue for rescission on the grounds of infringement of the creditor’s rights,the parties to the divorce agreement should take into account the purpose of their decision to donate property to their children in the divorce agreement,so as to prevent them from using the agreement to evade debts and damage the interests of outside creditors.