Insights

Is Ningbo Premarital Loyalty Agreement Effective

Ningbo Author：LuXu WANG

Some people will sign an agreement with the other party before marriage, agreeing that "if one party cheates after marriage, he or she will voluntarily leave the house" and "the cheating party will give up all the joint property of the husband and wife. Is this kind of loyalty agreement signed before marriage legally valid? Can it be used as the basis for property division in the event of divorce?

1. legal basis

article 1041 of the the People's Republic of China Civil Code: Marriage and family are protected by the State. The marriage system of freedom of marriage, monogamy and equality between men and women shall be implemented.

Article 1042 of the the People's Republic of China Civil Code prohibits arranged marriages, buying and selling marriages and other acts that interfere with the freedom of marriage.

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. The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.

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. A prenuptial agreement cannot agree on matters of identity

A prenuptial agreement may agree on matters such as the ownership of property and the assumption of debts, but it cannot agree on matters relating to identity relations. For example, provisions such as "no divorce after marriage", "divorce must be divorced if one of the parties is derailed", "loss of child support by the derailed party" are usually considered invalid because they restrict the freedom of marriage and violate the law.

2. The validity of the "clean out" clause is disputed.

The premarital loyalty agreement stipulates that "one party derails and goes out of the house", which is essentially a moral obligation into a property disposition. In judicial practice, the court is more cautious about such clauses:

  • some courts held that the agreement was an expression of the true will of both parties, did not violate the mandatory provisions of the law, and could be used as a reference for the division of property.
  • More courts have held that the "clean out" clause is essentially a disguised restriction on the freedom of divorce, and may lead to a serious imbalance in the interests of both parties, and should not be given enforcement.

The preference of the Supreme People's Court is that the loyalty agreement between husband and wife should be consciously performed by the parties, and the law does not give it enforcement power.

3. The distinction between the terms of the property agreement and the terms of the loyalty agreement.

If the prenuptial agreement only makes a clear agreement on the ownership of property, such as "a property owned by the woman after marriage" and "a deposit owned by the man", such an agreement is a marital property agreement and is legally binding in accordance with the law.

However, if the agreement links the disposition of property to the duty of loyalty, such as "one party derails and gives up all the property", it may be considered a loyalty agreement, and the validity is uncertain.

4. The valid elements of the property agreement in the prenuptial agreement.

To produce legal effect, the following conditions shall be met:

  • both parties have full capacity for civil conduct.
  • Signed voluntarily by both parties without fraud or coercion
  • the content is legal and does not violate the mandatory provisions of laws and administrative regulations.
  • No harm to the interests of the State, the collective or a third party
  • in written form
  • for property that needs to be registered, such as real estate, it is recommended to register or notarize the change.

3. boundary conditions

  • if the amount of compensation agreed upon in the prenuptial agreement is too high and obviously unfair, the court may adjust it at its discretion.
  • If one party claims to "clean up and leave the house" on the grounds that the other party is derailed, but cannot provide sufficient evidence, the court will not support it.
  • The pre-agreement on child support in a prenuptial agreement is usually invalid because it violates the principle of maximizing the interests of the child.
  • If a party is fraudulently or coerced at the time of signing the agreement, it may claim revocation within the statutory time limit.

4. operational steps

1. Clarify the purpose of the agreement

  • if the main purpose is to protect personal property, it is recommended to enter into a standardized prenuptial property agreement
  • if the main purpose is to bind the other party's loyalty, it should be recognized that there is uncertainty about the effectiveness of the loyalty agreement.

2. Precautions for signing a premarital property agreement

  • clearly enumerate the scope, value and ownership of pre-marital property.
  • Specify the manner in which property acquired after marriage is vested (jointly owned, owned or partly in common)
  • agreed on the manner in which the debt is assumed to avoid one party's premarital debt affecting the other
  • the content of the agreement should be fair and reasonable to avoid obvious unfairness.
  • Signed and dated by both parties, notary recommended

3. Treatment of property involved

  • if a party buys a house in full and registers it in his own name before marriage, it belongs to personal property and does not need special agreement.
  • If one party makes a down payment before marriage and repays the loan jointly after marriage, the property ownership and compensation method may be specified in the agreement.
  • If the registration of the gift or change of real estate is involved, the transfer procedures shall be handled in a timely manner to avoid the donor's cancellation of the gift before the transfer.

4. Rights Protection Strategies in Divorce

  • if the pre-marital property agreement is valid, the property shall be disposed of according to the agreement.
  • If the validity of the loyalty agreement is not recognized, compensation for divorce damages may be claimed in accordance with Article 1091 of the Civil Code.
  • Collect evidence of the other party's fault and seek care in the division of property.

5. common mistakes

myth 1: "If you sign a clean-out agreement before marriage, you can let the other party get nothing when you divorce"

error. The validity of the "clean-out" clause is highly controversial, and courts often do not fully enforce the agreement. Even if there is an agreement, the court will still divide the joint property of the husband and wife according to law.

Myth 2: "A prenuptial agreement can agree on anything"

error. Prenuptial agreements cannot agree on matters of identity, such as restrictions on freedom of divorce and deprivation of custody of children in advance. Such terms are null and void.

Myth 3: "The prenuptial agreement is valid as long as both parties sign it"

error. In addition to the prenuptial agreement signed by both parties, the content must also be legal and fair, and there is no fraud and coercion. Provisions that are manifestly unfair or in violation of mandatory provisions of the law may be found to be invalid or revocable. Ningbo parties should not expect to rely on a loyalty agreement to lock all the property, legal division and fault damages are still the main path.

Practical Experience of 6. Lawyers

the vast majority of parties overestimate the effectiveness of the kind of infidelity agreement signed before marriage. The main point is that the fate of the two types of clauses is different: those involving restrictions on the freedom of marriage and the consequences of the agreed identity relationship, such as the loss of custody without divorce or derailment, are usually found to be invalid; The part that only involves the disposal of property and does not violate the mandatory provisions may be used as a reference by the court in some cases, but it will not be executed completely according to the clean body. In other words, it is very risky to bet all your hopes on a paper loyalty agreement.

From an operational point of view, instead of talking about loyalty agreements afterwards, it is better to arrange the property right from the beginning. If you want to restrict the ownership of property, use a standardized written property agreement to clearly write down the ownership and income of the property before and after marriage, which is more likely to be recognized than writing a general sentence that the derailment party gives up all the property. At the same time, the objective evidence of the other party's fault is fixed, because it is the legal fault situation, not the agreement itself, that can really support the fault-free party's claim. The direction of evidence collection should focus on objective records, not just a few chat screenshots and dictation.

At the negotiation level, the loyalty agreement can be used as a bargaining chip for pressure and negotiation, but don't take it as a winning card to get tough. What really works is to put property clues, fault evidence and one's own legal rights on the table together. At the same time, avoid a pit: don't sign an obviously unfair property agreement hastily at the stage of emotional or trying to make up. It is very difficult to overturn it after signing. It is much more practical to write down the contents of the agreement and keep the evidence solid than to believe in a word that it is much more practical to leave the house clean.