Insights

Does the Ningbo Husband and Wife Loyalty Agreement Have Legal Effect

Ningbo Author：LuXu WANG

"if one party derails, compensate the other party for 1 million/clean up and leave the house" -- the loyalty agreement is full of feelings and calculations. However, when it comes to court, such agreements may not necessarily be fully enforceable. To begin with the conclusion: The validity of a loyalty agreement depends on whether it pertains to “loyalty in the marital relationship” or to “property arrangements.” Identity-fidelity clauses that are purely rhetorical in nature amount to moral exhortation and are difficult to enforce directly. Only by specifying the consequences of marital misconduct, such as adultery, in concrete, clear, and enforceable terms within a marital property agreement can such provisions gain legal recognition; however, clauses that are grossly unfair or carry elements of personal punishment will still be subject to judicial adjustment. In other words, the court upheld "property consequences", not "emotional restraint". This paper combines the relevant provisions of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code) and judicial practice to disassemble the effective elements of loyalty agreements, common misunderstandings and fixed points of evidence.

1. The two types of content in loyalty agreements: identity clauses and property clauses should be considered separately.

A fidelity agreement typically consists of two parts: first, obligations of personal fidelity, such as “no adultery” and “no romantic involvement with members of the opposite sex”; second, consequences for breach, such as “in the event of adultery, pay ×× yuan in damages, forfeit a specified asset, or leave the marital home with nothing.” The court's evaluation of these two parts is completely different. The part of identity loyalty corresponds to Article 1043 of the Civil Code: "The family 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. This provision is of a recommendatory nature, establishing the value orientation of marital ethics and family civility, but it does not directly create civil obligations that can be enforced through litigation—courts will not order one party to “must love the other” or “prohibitdating; relationship with third parties,” nor will they enforce compliance with fidelity itself. The property consequences may fall within the scope of article 1065 of the Civil Code: a man and a woman may agree that the property acquired during the marriage and the premarital property shall be owned by each, jointly or partly by each or partly jointly, and the agreement shall be in writing. Once the consequences of loyalty are designed as "conditional property attribution arrangements", there is room for conversion into a matrimonial property agreement, which can be legally binding. Therefore, the first step in judging whether a loyalty agreement is "working" is to separate the two types of clauses and evaluate them one by one.

2. identity-only clauses are difficult to enforce

Judicial practice usually does not serve as the basis for enforcement if it is simply agreed that "compensation for derailment is 1 million" and "the derailment party leaves the house clean" without specific property arrangements. There are three reasons: first, identity loyalty belongs to the category of moral advocacy, and it is not appropriate to enforce "performance" through judicial enforcement, otherwise it is tantamount to using public power to supervise marital feelings, which is neither operational nor contrary to freedom of marriage and personal dignity; second, high compensation clauses often lack reasonable correspondence with property status and fault degree, and direct implementation may be obviously unfair; third, the "clean out of the house" type of general expression points to unclear-which property belongs to the "net", how to bear the debt has no clear direction, can not form an enforceable payment content. This explains why a large number of "cheating millions" pure loyalty clauses are not directly supported: the courts do not deny the value of marital loyalty, but rather hold that such clauses do not fall into enforceable property legal relationships. If the plaintiff’s claim is based solely on the statement, “He promised to pay 1 million if he cheats,” it will typically be difficult to obtain full support; at most, it may serve as a discretionary factor influencing the division of property.

3. Handling property-based loyalty agreements: It is more secure when reduced to specific property arrangements.

The situation is different if the consequences of loyalty are transformed into specific marital property agreements. For example, it is agreed that "if one party maintains an improper relationship with the heterosexual outside marriage during the existence of the marriage relationship, the real estate registered in his name located in ×× shall be owned by the other party" or "the defaulting party shall pay compensation to the defaulting party with ×× million yuan deposited in ×× account under his name", which is in written form, clear in content and corresponds to the property one by one, such terms may be recognized as matrimonial property agreements or conditional gifts. The premise of recognition usually includes four elements: first, the meaning is true, there is no fraud or coercion, and both parties understand the meaning of the clause; Second, the content is clear and specific, and the property direction, ownership change and performance method are clear and enforceable. Third, it does not violate the mandatory provisions of the law and public order and good customs-clauses with "no divorce", "no visiting children" and "giving up personal freedom" as contents are invalid, the expression with the nature of personal punishment will be eliminated, and fourth, the consequences and the degree of fault, the size of the property is roughly the same, the amount of abnormally high, obvious imbalance, the court may be adjusted in accordance with the principle of fairness. The prudent approach in practice is the dual-track writing of the "property agreement loyalty clause": the text is centered on the property attribution arrangement (this part is protected by law), and the loyalty expression is used as a trigger condition and background description to avoid writing the agreement into a pure moral contract.

Convergence of 4. and Statutory Divorce Division Rules: Loyalty Agreements Do Not Replace Legal Rules

Whether there is a loyalty agreement or not, there are legal rules for divorce and division. Article 1087 of the Civil Code stipulates that at the time of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties; if the agreement fails, the people's court shall, in accordance with the specific circumstances of the property, decide in accordance with the principle of taking care of the rights and interests of the children, the woman and the innocent party-"taking care of the innocent party" is a legal preference. Article 1092 stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to embezzle the other party's property, it may be divided less or not at the time of divorce and division. The significance of the loyalty agreement is to solidify the "fault" and "property consequences" in advance, and strengthen the negotiating position and proof advantage of the contract-keeping party, but it cannot replace the statutory rules, let alone at the expense of restricting personal freedom. Special reminder is needed: even if there is no loyalty agreement, as long as the other party can prove the fault of cheating and cohabitation with others, the court will also favor the innocent party and support the compensation for divorce damages when dividing the common property according to law (article 1091 of the civil code); Loyalty agreement is the "bonus item", and legal rules are the "basic points".

Breakdown of 5. situations: Classification and evaluation according to writing style and fault situation

According to the content of the agreement and the form of evidence, four types of situations can be divided and evaluated separately. First, the verbal commitment or chat record in the "derailment on the clean out of the house": only stay at the level of dialogue, lack of written carrier and specific property direction, litigation in the weakest proof, usually difficult to serve as a basis for the division of property, can only be used as a fault evidence of the auxiliary. Second, written but pure slogan: "If derailment, compensation 1 million" no property point: the terms because of the payment content is unclear, the risk of apparent unfairness is high, the court does not support the full amount, may support partial compensation or not support as appropriate. Third, written and fall to the specific property: "derailment is x x x real estate to the contract party, x x account deposit compensation x x x ten thousand yuan": with the property agreement elements, the probability of recognition is higher, can be executed in accordance with the contract or as a basis for division. Fourth, in the name of the loyalty agreement to restrict the reality of the person: "no divorce or compensation" and so on: such provisions are invalid because of the violation of the principle of freedom of marriage, but the effective property provisions can be separated from other provisions. Subdivided by fault situation: if one party derails and actually continues to live together, article 1091 can be invoked to claim damages and multiple points, regardless of whether there is an agreement or not; If there is only ambiguous chat and the degree of "fault" in the legal sense is not reached, whether the trigger conditions in the agreement have been achieved will become the focus of controversy, and the difficulty of proof will increase significantly.

6. Case verification and key evidence points

According to the handling caliber of similar loyalty agreement disputes in Zhejiang area, there are few cases in which the pure identity "derailment compensation" clause is directly forced to be supported; if the fault consequences are reduced to specific property agreement and the content is balanced, the proportion of recognition is higher. Ningbo region's grasp of "property agreement can be recognized, personal punishment is difficult to enforce" is consistent with the province. Special attention should be paid to the evidence level: according to Yinzhou court's white paper on the trial of marriage and family cases (2019-2021), electronic evidence such as wechat in Ningbo divorce cases has many defects in evidence and is difficult to adopt-if loyalty clauses only exist in the form of chat records, the original carrier (mobile phone), continuous screenshots and notarized or credible time stamps should be completely preserved to prevent the other party from defending with "non-personal sending" and content editing; the written agreement should be signed by both parties and retained the original, involving real estate and other major property, can be notarized or synchronized for ownership change registration, so that the "agreement" into a "fait accompli", fundamentally eliminate the space for repentance.

7. Common misconceptions and correct answers

Misunderstanding 1: After signing the loyalty agreement, the cheating party must lose money according to the agreement. positive solution: pure slogan clauses are difficult to enforce; only when they fall into specific, clear and balanced property agreements can they have a higher probability of being supported.

Misunderstanding 2: Agreements can restrict each other's rights such as freedom of divorce and visiting children. positive explanation: this kind of personal restriction clause is invalid because it violates the mandatory provisions of law and public order and good customs, and writing it in may affect the evaluation of the whole agreement.

Misunderstanding 3: The higher the amount, the more deterrent it is. Positive solution: if the clause is obviously beyond the other party's ability to perform or is out of balance with the degree of fault, the court can adjust it according to the principle of fairness, and writing "sky-high compensation" is often just a paper deterrent.

Myth 4: If there is a loyalty agreement, there is no need to collect fault evidence. Positive solution: whether the trigger condition is fulfilled or not still needs proof, and the agreement itself cannot replace the fault evidence such as alarm record, chat record, transfer voucher, etc.; if the evidence is insufficient, the agreement is equal to the empty text.

Misunderstanding 5: The loyalty agreement must be valid after being notarized. positive solution: what the notarization strengthens is the probative force of the authenticity and legality of the agreement, which cannot cure the defects of the clause itself that violate the law or public order and good customs; the invalid clause is still invalid after notarization.

List of 8. materials and drafting points

If you intend to draft or evaluate a loyalty agreement, it is recommended to compare the following list:

  1. Clarify the subject and purpose: specify the identity information of both parties and the purpose of the agreement (maintaining marriage loyalty and clarifying the consequences of the fault property), so as to avoid being misinterpreted as conditional gift or moral commitment;
  2. Property Inventory in Advance: List each item of the property to be subject to the agreement—such as real estate, bank deposits, equity interests, and vehicles—specifying its current ownership status and estimated value, to serve as the subject matter whose ownership will change upon the occurrence of the triggering event.
  3. The specific trigger conditions: define "infidelity", "cohabitation with others" and so on which can be proved (such as "continuous living with the opposite sex outside marriage", "birth outside marriage confirmed by effective legal documents" and so on), so as to reduce disputes;
  4. Consequences correspond to the property: it is agreed that the specific property under the name of the fault party belongs to the contract-abiding party or pays a definite amount of compensation, and the amount is commensurate with the scale of the property and the degree of the fault;
  5. Exclude invalid contents: do not write articles restricting divorce, giving up custody, personal freedom and so on;
  6. The form is complete: written, stamped and dated by both parties, and timely change registration or advance notice registration for real estate involved, and notarized if necessary;
  7. Retention of fault evidence: alarm records, chat records, transfer flow, travel records, etc. which are independent of the agreement, are sorted according to the "original timeline.

Convergence of the effect of incorporating the 9. loyalty clause into the divorce agreement

Another common form in practice is to write the consequences of loyalty into the divorce agreement, such as the agreement that "if the divorce is caused by the fault of one party, the other party shall be voluntarily compensated ×× yuan", or the divorce agreement confirms that one party is at fault and makes a property tilt arrangement. Such clauses in the divorce agreement belong to a package arrangement for property and compensation in the event of divorce: according to article 1076 of the civil code and judicial practice, the divorce agreement takes effect upon registration of divorce, in which the property and compensation clauses are legally binding on both parties, and disputes over performance can be sued in court. generally, the rules of proof and revocation of ordinary contract disputes do not apply. Compared with the marital loyalty agreement, the compensation clause in the divorce agreement is often accompanied by a clear fault background confirmation and property direction, the probability of support is usually higher, but if the amount of compensation is abnormally high, obviously beyond the degree of fault and the other party's ability to perform, the court can still adjust according to the principle of fairness. It is worth reminding the reverse risk: in order to avoid the divorce deadlock, one party may voluntarily give up property rights and interests in the divorce agreement in exchange for a quick divorce, and then request cancellation on the grounds of obvious unfairness-judicial practice is strict in reviewing the estoppel of property concessions in the divorce agreement, unless there are legal circumstances such as fraud and coercion, it is generally not supported. Therefore, the best landing point of loyalty arrangement is "confirmation of divorce agreement in writing within marriage", which is fixed in two layers and bases every concession on written and true intention.

10. FAQ

Are marital loyalty agreements legally recognized?

sub-content: identity loyalty is a moral advocacy, pure slogan clause is difficult to enforce; but the consequences of the fault into a specific, written property ownership arrangements, may be recognized as the property agreement of the husband and wife its property effect.

Can writing "Infidelity Compensation 1 million" be enforced?

Generally, it cannot be directly executed in full. Courts do not support pure status high compensation.

What is the relationship between a loyalty agreement and receiving a smaller share of marital property in a divorce?

in parallel. Divorce division has statutory rules that take care of the no-fault party and divide or divide the hidden transfer of property; loyalty agreements can strengthen property arrangements and fix the consequences of fault, but cannot replace statutory rules, and both can be claimed at the same time.

How to write a loyalty agreement to be recognized?

is written as specific property ownership (not personal punishment), with clear content, balanced amount and true writing. It involves the timely handling of ownership change or notarization of large property, avoiding the expression of obvious unfairness and personal restriction.

Can you claim compensation or more points if you find that the other party has cheated but has not signed a loyalty agreement?

Can. According to Articles 1087 and 1091 of the Civil Code, as long as the facts of the fault can be proved, the divorce can claim damages and claim more common property, and the loyalty agreement is not a prerequisite.

XI. Lawyers' Practical Experience

Whether the loyalty agreement can be implemented depends on whether it is written "identity loyalty" or "property arrangement". The pure slogan "no derailment" belongs to moral advocacy, and it is difficult to apply for enforcement directly. Only when the consequences of the fault are written into specific, clear and enforceable property agreements can they be more likely to be recognized, and the obviously unfair and personal punishment clauses will still be adjusted. So before signing, think clearly: whether you want emotional constraints or redeemable economic consequences, the two are completely different in design.

The drafting and fixing of evidence should be done simultaneously. The agreement should fall on specific property, such as to whom an asset belongs and how compensation is calculated and paid, rather than writing "clean out of the house" in general. It should be noted that the loyalty agreement is not a substitute for the statutory divorce division rules, it is just an additional agreement superimposed on the statutory rules, do not expect to use it to bypass the statutory property treatment, otherwise it is easy to fall through.

In terms of the timing of use, loyalty agreement is more suitable as an auxiliary bargaining chip for negotiation, rather than the only trump card. When it comes to the stage of dispute, one party will often go back on its word for reasons such as obvious unfairness and coercion. Therefore, the signing process should be voluntary, clear and leave marks. It is better to link up the property arrangement with the division in divorce, and the implementation will be much smoother. On the other hand, even if you get a paper document, you will often stumble when you cash it. Set expectations to be pragmatic so that they will not be led by a paper agreement.

the value of loyalty agreement is not in "binding feelings", but in "solidifying property consequences". For it to work in court, "loyalty" must be translated into a specific property agreement: written, clear, balanced, enforceable, and timely change of ownership or notarization. At the same time, remember that the agreement is only a tool, and the evidence of fault is the basis-the alarm record, chat record, transfer flow and written agreement confirm each other, so that the contract-keeping party's claim can be put into practice.