Question:
A divorced couple has two daughters in 3rd and 6th grade living with the mother in a house that is jointly owned by both parents. The father intends to transfer his share of the property to his daughters. In this case, will the mother be their guardian until they turn 18? A notary official stated that the mother can only be the guardian if she also transfers her share of the property to the daughters. Is this correct?
Answer:
According to Article 136 of the 2015 Civil Code, parents are the legal representatives of their minor children. Based on this provision, both parents are the legal representatives of their two daughters, unless:
-
Both parents have lost their legal capacity;
-
Both parents have cognitive or behavioral difficulties;
-
Both parents have limited legal capacity;
-
Both parents have been declared by the court as having restricted parental rights;
-
Both parents are unable to care for and educate their children and request a guardian.
Therefore, the notary office's claim that the mother must transfer her share of the property to the children to become their guardian is incorrect.
As per the Civil Code, a person can be a guardian if they meet the following conditions:
-
Have full legal capacity;
-
Have good moral character and the necessary conditions to fulfill guardianship duties;
-
Are not under criminal investigation or have been convicted of intentional crimes against life, health, dignity, honor, or property.
The individuals who require guardianship include:
-
Minors without parents or whose parents are unknown;
-
Minors whose parents have lost legal capacity, have cognitive or behavioral difficulties, have limited legal capacity, have been restricted by court order, or are unable to care for them and request a guardian;
-
Persons who have lost legal capacity;
-
Persons with cognitive or behavioral difficulties.
Regarding the father transferring half of the house to the daughters, under the 2015 Civil Code, minors between six and fifteen years old need their legal representative’s consent for transactions, except for daily activities appropriate to their age. Those between fifteen and eighteen can enter into contracts independently, except for real estate transactions and other legally regulated cases that require parental consent.
Thus, for a minor to receive real estate as a gift, the legal representative (parent) must agree and sign the donation contract.
However, under Clause 3, Article 141 of the 2015 Civil Code, a person cannot represent another individual in transactions with themselves or as the representative of a third party, unless otherwise prescribed by law.
Therefore, in this case, the father cannot be both the donor and the recipient’s representative in the donation contract. Instead, he can first donate the property to the paternal grandparents, who can then transfer it to the grandchildren. In this scenario, the legal representative of the daughters (both parents) would sign on their behalf.
