Insights

Is the ningbo marital loyalty agreement valid?

Ningbo Author：LuXu WANG

Many couples sign "loyalty agreements" during their marriage, agreeing that "if one party cheates, he will leave the house clean" and "compensate the other party XX million yuan. Wait until the actual divorce, this agreement can be used as the basis for the division of property? In judicial practice, the validity of the marital loyalty agreement has been controversial, and the court's judgment scale varies from place to place. In Zhejiang, the People's Court of the Provincial High Court "on the trial of marriage and family cases on the answer to a number of questions" (Gao Fa Min 1 [2016] No. 2) on the pre-marital house purchase, divorce agreement property treatment and other circumstances to make detailed provisions, Ningbo Court in the case will be combined with the answer to grasp the judgment scale.

1. legal basis

article 1043 of the the People's Republic of China Civil Code: Families should establish a good family style, promote family virtues, and attach importance to the construction of family civilization. Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations.

Article 1065 of the the People's Republic of China Civil Code: A man and a woman may agree that the property acquired during the marriage and the pre-marital property shall belong to each, jointly or partly to each, partly to each. The agreement shall be in writing.

Article 1091 of the the People's Republic of China Civil Code: If one of the following circumstances leads to divorce, the innocent party has the right to claim damages:

(I) bigamy;

(II) cohabitation with others;

(III) domestic violence;

(IV) abuse and abandonment of family members;

(V) have other major faults.

2. core points

1. The duty of fidelity between husband and wife is an advocacy provision and not a mandatory legal obligation.

The duty of mutual loyalty between husband and wife stipulated in Article 1043 of the Civil Code is an advocacy and moral clause, not a mandatory norm on which the parties can directly claim their rights. Therefore, the validity of a loyalty agreement signed solely on the grounds of violation of the duty of loyalty is controversial in judicial practice.

2. Two mainstream views on the effectiveness of marital loyalty agreements. Point one: effective said

some courts held that the loyalty agreement is signed voluntarily by both husband and wife, the content does not violate the mandatory provisions of laws and administrative regulations, does not violate public order and good customs, and should respect the autonomy of the parties. In particular, the agreement on the disposition of property in the agreement can be regarded as part of the agreement on the property of the husband and wife and can be used as a reference for the division of property in the event of divorce.

Point two: invalid or does not have the enforcement force to say

in the relevant judicial interpretations and precedents, the Supreme People's Court tends to hold that the loyalty agreement between husband and wife should be consciously performed by the parties in accordance with the principle of good faith, and the law does not give it enforcement power. The reason is that the marriage relationship has strong personal attributes, and the law should not interfere too much with the feelings and private life between husband and wife; if the loyalty agreement is given enforcement power, it may cause one party to take illegal measures to obtain evidence and damage the legitimate rights and interests of others.

3. Provisions involving personal relations penalties are usually invalid.

The loyalty agreement stipulates that "the derailer loses the custody of the children", "the derailer is not allowed to visit the children", "the derailer must divorce" and other provisions related to personal relations, which are usually deemed invalid for violating the law or harming the interests of minors. Issues such as child custody and visitation rights should be judged by the court in accordance with the principle of maximizing the interests of children.

4. Property disposition provisions are relatively easier to recognize

if the loyalty agreement only makes an agreement on the ownership of the joint property of the husband and wife, such as "if one party cheats, voluntarily gives up the share of a certain property", and the agreement does not violate the mandatory provisions of the law and does not harm the interests of the third party, some courts may recognize its validity as a reference basis for the division of property. Disposition agreements involving large amounts of property, such as real estate, will be significantly enhanced if they can be notarized or registered for changes in property rights at the same time.

3. boundary conditions

  • if the amount of compensation agreed in the loyalty agreement is obviously too high and unfair, the court may adjust it at its discretion.
  • If there is fraud, coercion, etc. at the time of signing the agreement, the injured party may claim to cancel the agreement.
  • If a party takes illegal means to obtain evidence (e. g., candid filming, wiretapping) to prove the other party's breach of contract, the relevant evidence may be excluded.
  • Loyalty agreement can not replace the husband and wife property agreement, if the property ownership needs to be clarified, it is recommended to sign a standardized husband and wife property agreement.

4. operational steps

1. Matters needing attention when signing the agreement

  • clarify the nature of the agreement: whether it is a loyalty agreement or a marital property agreement.
  • Try to make specific and clear agreements on the disposition of property to avoid penalties involving personal relations.
  • The agreed amount of compensation should be reasonable and not too high to avoid being found to be manifestly unfair.
  • Signed voluntarily by both parties, retaining evidence of the signing process (e. g., witnesses, videos, etc.)

2. Evidence collection should be legal

  • the evidence of derailment should be obtained through legal channels to avoid illegal means such as candid shooting, eavesdropping and tracking.
  • Keep chat records, transfer records, photos and videos and other evidence, pay attention to the integrity and authenticity of the evidence
  • if necessary, apply to the court for investigation and evidence collection

3. Advocacy Strategies in Divorce

  • if the loyalty agreement is recognized by the court, it can be used as the basis for the division of property.
  • If the validity of the agreement is not recognized, it may still claim compensation for divorce damages under Article 1091 of the Civil Code.
  • At the same time, attention should be paid to the collection of evidence of the joint property of husband and wife to ensure the fairness of the division of property.

4. A more secure approach: enter into a marital property agreement.

  • If the main purpose is to protect property rights and interests, it is recommended to sign a standardized marital property agreement.
  • Clearly agree on the ownership of pre-marital property, post-marital property, and the treatment of property under certain circumstances.
  • Property involving real estate and other properties that need to be registered shall be registered or notarized in a timely manner.
  • Involving real estate and other large property disposition agreement, it is recommended to synchronize notarization or change registration, enhance the force of proof.

5. common mistakes

myth 1: "After signing a loyalty agreement, the cheating party must leave the house clean"

error. The validity of the loyalty agreement is controversial in judicial practice, and the court may not decide in full accordance with the agreement. In particular, high compensation clauses such as "clean out of the house" may be deemed to be obviously unfair or contrary to public order and good customs.

Myth 2: "Loyalty agreement can agree to give up custody of children"

error. The ownership of child custody should be based on the principle of maximizing the interests of the child, and one party cannot be deprived of custody or visitation rights in advance through agreement. Such clauses are usually invalid.

Myth 3: "As long as the other party derails, loyalty agreements must be useful"

error. The role of loyalty agreements is limited, and the scale of court decisions varies from place to place. Instead of relying solely on loyalty agreements, it is better to protect rights and interests through more legally guaranteed ways such as marital property agreements and divorce damages.

Practical Experience of 6. Lawyers

whether loyalty agreements can be used cannot be generalized. The content of the agreed property disposition may be recognized in some cases, but the provisions involving the restriction of the freedom of divorce and the punishment of the person are usually invalid. Therefore, those who have this agreement in their hands should not regard it as "hard evidence", but should look at what it says one by one: whether it is an agreement on how to divide the property, or whether it requires the other party to "clean up the house", "no divorce" and "how much compensation". The nature is different, and the results vary greatly. Evidence from the signing and performance process should also be kept and may be used in the future.

From the experience of handling cases, loyalty agreements are more of a negotiating tool than a basis for deciding whether to win or lose. What really works is the chain of evidence that proves the facts of the fault, such as derailment, and the impact of these facts on the division of property, custody and damages. Therefore, don't put all your hopes on a paper agreement. You should collect chat records, transfers, itineraries and other evidence that can confirm each other at the same time, and confirm "whether there is any fault and to what extent. The agreement can be used as an aid to help you have more chips in the negotiation.

If you plan to make property arrangements during marriage, instead of writing vague loyalty clauses, it is better to make the property agreement realistic: make clear which property belongs to each other, which is common, and how to deal with the income after marriage, adopt written form, and notarize if necessary, so that the content is legal and enforceable. The agreement avoids punitive expressions that restrict personal freedom and are conditional on "derailment, I .e. clean out of the house", and focuses on property ownership and debt assumption. It is safer to talk clearly before or during marriage than to argue with an agreement with doubtful validity afterwards.