Q
After the two parties agree to divorce, if one party is unwilling to donate the house under his name to his children or others as agreed in the divorce agreement, the other party requests the court to order one party to handle the house transfer procedures as agreed in the agreement. Is it supported?
A
In practice, after an agreement divorce, one party often repents and refuses to deliver the donated house agreed in the divorce agreement. In this regard, the donor's reason is often based on the provisions of Article 658, paragraph 1 of the " Civil Code " that "the donor can revoke the gift before the right to the donated property is transferred", claims that the gift can be revoked unconditionally. The donor's point of view is wrong.
The reason is that the agreement on house gifts in divorce agreement does not constitute a gift contract in the general sense . According to Article 657 of the Civil Code, "A contract is a contract in which the donor gives his property to the donor free of charge and the donor expresses acceptance of the gift", the premise of forming a gift contract is that the donor gives his property to the donor free of charge and does not require the donor to pay the price or assume any obligation for it. Specifically speaking of gifts in divorce agreements, there are few cases in which the recipient confirms the acceptance of the gift in the divorce agreement in practice.
In other words, the so-called gift in the divorce agreement does not reach an agreement between the donor and the recipient and does not constitute a gift contract. Since it does not constitute a gift contract, there is generally no possibility that the donor will revoke it in accordance with the Civil Code. So from a legal perspective, how should the donor's gift expression in the divorce agreement be evaluated?
We believe that this is the obligation promised by the donor to fulfill in exchange for the other party to agree to the divorce agreement . The special thing about this obligation is that the donor's obligation to pay the house is not performed to the counterparty of the divorce agreement, but to a third party outside the contract as agreed. According to Article 1076 of the Civil Code, "If a husband and wife voluntarily divorce, they shall sign a written divorce agreement and personally go to the marriage registration authority to apply for divorce registration. The divorce agreement shall state the intention of both parties to voluntarily divorce and their consensus on matters such as child support, property, and debt handling." Since the prerequisite for the marriage registration authority to register for divorce is that both parties reach an agreement on child support and property division, the party eager to divorce may make certain concessions to property division in the divorce agreement. In this type of divorce agreement, the main obligations of both parties are manifested in that the recipient cooperates with the donor to handle the divorce agreement, and the recipient delivers the house to a third party. If the counterparty has terminated the marriage relationship with the donor as agreed, the donor shall also fulfill the obligation to pay the house as agreed. If the donor fails to perform the obligation, it constitutes a breach of contract. The counterparty of the divorce agreement has the right to request the court to order it to fulfill the house delivery obligation.
The Supreme People's Court "Interpretation on the Application of Marriage and Family Compilation of the Civil Code of the People's Republic of China (I)" Article 69, paragraph 2, "The provisions on the handling of property and debts 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" can be understood as the embodiment of the above spirit. my country is moving towards the rule of law, and the signing and implementation of divorce agreements should implement the principle of honesty and trustworthiness of . Those who do not intend to perform the agreement when signing, especially those who make a substantial concession on property division in exchange for the expedient means of the other party to quickly agree to a divorce, but will repent and do not intend to perform the agreement seriously, must not support it.
Reprinted from: "Civil Trial Practical Questions and Answers" (edited by the First Civil Trial Division of the Supreme People's Court, Law Press, first edition in July 2021)
Source: Shandong High Court
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