Civil and commercial perspective. Is it valid for the divorce agreement to give the house to the children?
Published:
2022-02-24
Brief description of the case Zhang Ting and Li Jun want to divorce by agreement, and both parties want to agree in the divorce agreement to give the real estate jointly owned by the husband and wife to Li Zhe, the legitimate child. Because the property is a loan to buy, Zhang Ting voluntarily continue to repay the loan on a monthly basis. Zhang Ting Consulting: Is the agreement valid? Can it be revoked? If Li Jun does not cooperate with the transfer, how to remedy it? Lawyer Analysis The divorce agreement stipulates that the gift of the property to the children is valid. Since the property is the joint property of the husband and wife during the marriage, both parties have the right to agree in the divorce agreement to give the house to the legitimate child Li Zhe. In view of the fact that the house is a mortgage house, the mortgage loan will continue to be paid by Zhang Ting voluntarily on a monthly basis. When the house meets the transfer procedures, it is also feasible for both parties to assist Li Zhe in handling the registration procedures for the change of property rights of the house within a reasonable period of time. The content of the divorce agreement was written by one party in the marriage registration authority. Both parties have signed and agreed, and both parties did not coerce or cheat when signing the divorce agreement. The civil affairs authority reviewed the true meaning of the divorce agreement and filed it, and handled the divorce registration procedures for both parties. Therefore, the divorce agreement signed by both parties in the marriage registration authority regarding the gift of real estate to the legitimate child Li Zhe is legal and valid, and both parties shall perform according to the agreement. The couple cannot revoke the gift. First of all, the gift clause in the divorce agreement did not reach an agreement between the donor (Zhang Ting, Li Jun) and the donee (Li Zhe), and Li Zhe did not sign for confirmation, which is different from the gift in the traditional sense. Therefore, Zhang Ting and Li Jun do not enjoy the right of revocation. Secondly, the gift of real estate in the divorce agreement is not to the other party, but to the third party. It also includes the special relationship of dissolution of marriage. Therefore, it cannot be revoked. How to realize their rights if one or both parties fail to perform this agreement If one or both parties do not perform the agreement, Li Zhe can sue to the court to request both parties to assist in the transfer of the house involved in the case. The court usually supports the claim. Supreme Court Judicial Views In practice, sometimes after the signing of the divorce agreement, one party goes back on his word and refuses to deliver the gift house agreed in the divorce agreement. In this regard, the donor's reason is often to claim that the gift can be unconditionally revoked. This view of the donor is incorrect. The reason is that the agreement on the house gift in the divorce agreement does not constitute a gift contract in the general sense. The premise of the contract of gift is that the donor gives his property to the donee free of charge without requiring the donee to pay for it or assume any obligation. In practice, it is rare for the recipient to confirm the acceptance of the gift in the divorce agreement. In other words, the so-called gift in the divorce agreement does not reach an agreement between the donor and the donee and does not constitute a gift contract. Since it does not constitute a contract of gift, there is generally no possibility of the donor being revoked under the Civil Code. At the same time, the gift is an obligation that the giver promises to perform in exchange for the other party's consent to the divorce by agreement. The special feature of this obligation is that the donor's obligation to pay the house is not performed to the opposite party of the divorce agreement, but to the third party outside the contract as agreed. Since the prerequisite for divorce registration by the marriage registration authority is that both parties agree on the maintenance of children and the division of property, the party eager to divorce may make certain concessions on the division of property in the divorce agreement. The main obligation of both parties in this type of divorce agreement is that the opposite party cooperates with the divorcing party to handle the divorce by agreement, and both parties deliver the house to the third party as the giver. In the case where the opposite party has agreed to dissolve the marriage relationship with the requesting divorce party, the requesting divorce party as the donor shall also perform the obligation to pay the house as agreed. If the donor does not perform this obligation, the donee has the right to request the court to order him to perform the obligation to deliver the house. China is moving towards the rule of law, the signing and implementation of divorce agreements should implement the principle of good faith. For those parties who did not intend to implement the agreement when signing the agreement, especially those who used substantial concessions on the division of property in exchange for the other party to quickly agree to divorce, but went back on their word after achieving the purpose of divorce, and did not intend to seriously implement the agreement when the divorce agreement was signed, they must not be supported. Relevant Articles 1. Article 10176 of the the People's Republic of China Civil Code stipulates that if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt handling. 2. Paragraph 2 of Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code: The provisions on property and debt handling in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code are legally binding on both men and women. If a lawsuit is brought by a party due to a dispute over the performance of the above-mentioned agreement after the divorce is registered, the people's court shall accept it. 3. Article 657 of the the People's Republic of China Civil Code: "A gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift".
Brief description of the case
Zhang Ting and Li Jun want to divorce by agreement, and both parties want to agree in the divorce agreement to give the real estate jointly owned by the husband and wife to Li Zhe, the legitimate child. Because the property is a loan to buy, Zhang Ting voluntarily continue to repay the loan on a monthly basis. Zhang Ting Consulting: Is the agreement valid? Can it be revoked? If Li Jun does not cooperate with the transfer, how to remedy it?
Lawyer Analysis
The divorce agreement stipulates that the gift of the property to the children is valid.
Since the property is the joint property of the husband and wife during the marriage, both parties have the right to agree in the divorce agreement to give the house to the legitimate child Li Zhe. In view of the fact that the house is a mortgage house, the mortgage loan will continue to be paid by Zhang Ting voluntarily on a monthly basis. When the house meets the transfer procedures, it is also feasible for both parties to assist Li Zhe in handling the registration procedures for the change of property rights of the house within a reasonable period of time. The content of the divorce agreement was written by one party in the marriage registration authority. Both parties have signed and agreed, and both parties did not coerce or cheat when signing the divorce agreement. The civil affairs authority reviewed the true meaning of the divorce agreement and filed it, and handled the divorce registration procedures for both parties. Therefore, the divorce agreement signed by both parties in the marriage registration authority regarding the gift of real estate to the legitimate child Li Zhe is legal and valid, and both parties shall perform according to the agreement.
The couple cannot revoke the gift.
First of all, the gift clause in the divorce agreement did not reach an agreement between the donor (Zhang Ting, Li Jun) and the donee (Li Zhe), and Li Zhe did not sign for confirmation, which is different from the gift in the traditional sense. Therefore, Zhang Ting and Li Jun do not enjoy the right of revocation.
Secondly, the gift of real estate in the divorce agreement is not to the other party, but to the third party. It also includes the special relationship of dissolution of marriage. Therefore, it cannot be revoked.
How to realize their rights if one or both parties fail to perform this agreement
If one or both parties do not perform the agreement, Li Zhe can sue to the court to request both parties to assist in the transfer of the house involved in the case. The court usually supports the claim.
Supreme Court Judicial Views
In practice, sometimes after the signing of the divorce agreement, one party goes back on his word and refuses to deliver the gift house agreed in the divorce agreement. In this regard, the donor's reason is often to claim that the gift can be unconditionally revoked. This view of the donor is incorrect. The reason is that the agreement on the house gift in the divorce agreement does not constitute a gift contract in the general sense. The premise of the contract of gift is that the donor gives his property to the donee free of charge without requiring the donee to pay for it or assume any obligation. In practice, it is rare for the recipient to confirm the acceptance of the gift in the divorce agreement. In other words, the so-called gift in the divorce agreement does not reach an agreement between the donor and the donee and does not constitute a gift contract. Since it does not constitute a contract of gift, there is generally no possibility of the donor being revoked under the Civil Code.
At the same time, the gift is an obligation that the giver promises to perform in exchange for the other party's consent to the divorce by agreement. The special feature of this obligation is that the donor's obligation to pay the house is not performed to the opposite party of the divorce agreement, but to the third party outside the contract as agreed. Since the prerequisite for divorce registration by the marriage registration authority is that both parties agree on the maintenance of children and the division of property, the party eager to divorce may make certain concessions on the division of property in the divorce agreement. The main obligation of both parties in this type of divorce agreement is that the opposite party cooperates with the divorcing party to handle the divorce by agreement, and both parties deliver the house to the third party as the giver. In the case where the opposite party has agreed to dissolve the marriage relationship with the requesting divorce party, the requesting divorce party as the donor shall also perform the obligation to pay the house as agreed. If the donor does not perform this obligation, the donee has the right to request the court to order him to perform the obligation to deliver the house. China is moving towards the rule of law, the signing and implementation of divorce agreements should implement the principle of good faith. For those parties who did not intend to implement the agreement when signing the agreement, especially those who used substantial concessions on the division of property in exchange for the other party to quickly agree to divorce, but went back on their word after achieving the purpose of divorce, and did not intend to seriously implement the agreement when the divorce agreement was signed, they must not be supported.
Relevant Articles
1,Article 10176 of the the People's Republic of China Civil Code stipulates: If the husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration in person at the marriage registration agency.
The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt handling.
2,Article 69, paragraph 2, of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code: The provisions on property and debt handling in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code are legally binding on both men and women. If a lawsuit is brought by a party due to a dispute over the performance of the above-mentioned agreement after the divorce is registered, the people's court shall accept it.
3,Article 657 of the the People's Republic of China Civil Code:"A gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses acceptance of the gift".
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