离婚财产分割协议不动产归属问题研究

Research on the Ownership of Real Estate in the Property Settlement Agreement for Divorce

夫妻之间婚姻关系的解除通常涉及不动产协议分割问题,离婚协议生效后,由于种种原因未办理不动产变更登记的情况不在少数,加之,我国对于离婚财产分割协议的法律性质尚未明确,该约定的法律效力也存在空白,极易引发约定所有权人与名义登记人的债权人之间的案外人异议之诉。分析认为,离婚财产分割协议与夫妻财产制和赠与合同不同,是夫妻双方就其结束婚姻状态而进行的一种“清算”,但仍应遵循不动产登记生效原则。但由于不动产登记制度的实践适用尚无法满足社会成员的现实需要,故而,应在特殊情况下对因离婚财产分割协议而享有不动产权属的一方给予特殊保护,赋予其排除强制执行的效力。

The dissolution of marriage is usually accompanied by real estate settlement agreement,but many registration of real estates are left the same due to multiple reasons.Moreover,the nature and legal effect of property settlement agreement for divorce are still unclear in China,leading objection lawsuit between the agreed owner and the legal owner’s creditor.Unlike the marital property contract and gift contract,the property settlement agreement for divorce is a form of liquidation that should comply by the principle of registration effectiveness of real estate.However,since the application of the real estate registration system cannot meet the realistic needs of citizens,special protection and the right to exclude forced execution should be granted to one party who enjoys real estate ownership according to the property settlement agreement for divorce in special circumstances.