A divorce agreement needs to meet the following requirements before it has legal effect:
First, divorce.
second, the contents in the divorce agreement do not violate the mandatory provisions of the law
third, the divorce agreement does not infringe on the legitimate rights and interests of the state or others; Fourth, apply for a divorce certificate according to the divorce agreement. First, if the agreement is signed and sealed by the staff of the Civil Affairs Bureau or the court at the time of divorce, it is a valid agreement and protected by law.
According to Article 8 of Interpretation (2) of Marriage Law: "The provisions on property division in divorce agreement or the agreement reached by the parties on property division due to divorce are legally binding on both men and women.
second, if the agreement is signed privately by both parties, it belongs to the divorce agreement originally signed by the husband and wife. In divorce proceedings, the divorce agreement originally signed by the husband and wife cannot be used as the basis for the court to judge. At best, the court can only consider the marital relationship involved in the agreement as a reference factor in the adjudication process. The reasons are as follows:
1. The effectiveness of divorce agreement should not be equal to that of general civil contracts and agreements, which has its own particularity.
article 2 of the contract law stipulates: "the contract referred to in this law is an agreement between natural persons, legal persons and other organizations with equal subjects to establish, change and terminate the civil rights and obligations. Agreements on identity relations such as marriage, adoption and guardianship shall be governed by other laws. " Obviously, the relevant provisions of the Marriage Law and the General Principles of the Civil Law should be applied to the handling of marriage relations, including identity relations and property relations involving marriage, rather than the relevant spirit of the Contract Law. The above two viewpoints are based on the same theoretical basis, that is, dealing with marital disputes with the spirit of the relevant principles of contract law.
2. The divorce agreement should be an ineffective agreement or an agreement whose effectiveness is to be determined. The agreement will take effect when the conditions are met, and vice versa. The signing of a divorce agreement for the purpose of divorce by agreement should be a civil legal act with conditions and time limit. According to the provisions of the General Principles of Civil Law, this civil legal act can only take effect when it meets the conditions.
the conditions attached to the divorce agreement signed by both parties are to agree on divorce, and the attached time limit is that both parties should go to the marriage registration office to get a divorce certificate. The divorce agreement signed by both parties will take effect only when these two situations meet. Of course, when the husband and wife sign a divorce agreement, they will not express the attached conditions and time limit as clearly as the general parties do when signing contracts and agreements, but no matter how they are expressed, the divorce agreement should reflect this spirit. Therefore, when a divorce lawsuit is caused, the conditions and time limit attached to the divorce agreement have obviously not been achieved, so it should not have legal effect.
3. Divorce agreements are produced under specific conditions, and the parties have certain limitations both subjectively and objectively. The general principles of civil law stipulate that the establishment of a civil juristic act should meet three conditions: the actor has corresponding capacity for civil conduct; Meaning means truth; Do not violate the law or social public interests. At the same time, it is required that there can be no invalid or changeable or revoked situation. As an agreement, firstly, it should be signed between equal subjects, secondly, it must reflect the true meaning of the parties, and thirdly, the content of the agreement should be fair.
4. Judging from the handling of disputes caused by non-performance after the signing of the divorce agreement, it can further explain the existence of its effectiveness. Failure to perform after the signing of the divorce agreement causes litigation. As a court, it is still a marriage case, not a general contract dispute. Otherwise, one party can only ask the other party to perform the agreement when suing, and it is not necessary to treat it as a complicated marriage case. It can be seen that after signing the divorce agreement, both parties failed to get the divorce certificate from the marriage registration office, which caused a lawsuit, indicating that both parties failed to fulfill the signed divorce agreement, which should be regarded as that both parties have gone back on their word. At the same time, it also shows that the purpose of the agreement can not be achieved, and the agreement can be terminated.
Legal basis:
Article 176, paragraph 1 of the Civil Code of the People's Republic of China, 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 office.
if one of the spouses requests a divorce in paragraphs 1 and 2 of article 179 of the civil code of the people's Republic of China, the relevant organization may mediate or directly file a divorce lawsuit with the people's court.
when trying divorce cases, the people's court shall conduct mediation; If the relationship has indeed broken down and mediation fails, divorce shall be granted.