| Mainstream legal scholars and practitioners in China, while recognizing the "gift to the children" clause as a donation clause, disagree on the applicability of Art. 186 of Chinese Contract Law, which gives a donor the right of revocation at will. Actually, according to the general principle of termination of contract in the regime of contract law, the "gifts to children" clause in divorce agreements, like the "division of marital property" clause, is a liquidation clause in divorce. It is only from the perspective of liquidation of marital property in divorce that we can explain the complex "integration" of different clauses in a divorce agreement. So, in spite of its name, the "gift to the children" clause is in fact a liquidation clause in the case of divorce, because the parties to the agreement do not have the "animus donandi". The real purpose of the clause is to regulate the complicated situation of liquidation of martial properties, rather than donation, at the termination of the marriage relationship. Therefore, the aforementioned Article 186 should not be applied to this situation. To determine the specific application of law, we need to comprehensively investigate the following three relationships from a "three-dimensional point of view", i.e., the relationship between the divorcing parties, the relationship between the parents and the children, and the relationship between the divorcing parties and their creditors. |
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