Does Ningbo Need Compensation for Violation of Husband and Wife Loyalty Agreement

Whether a breach of a conjugal loyalty agreement can be compensated cannot be generalized. In practice, there is a more consistent view that restrictions on identity relations and personal freedom, such as leaving the house clean, giving up custody of children, and not filing for divorce, are generally considered invalid. For property compensation agreements that do not violate the mandatory provisions of the law, public order and good customs and clear content, some courts will support them within a reasonable range, but the scale is not uniform, and those with abnormally high amounts will be reduced.

A more secure understanding is that the compensation agreed upon in the loyalty agreement and the compensation for divorce damages under Article 1091 of the Civil Code are two different bases of claim. The former is based on contractual agreement, the latter on statutory fault. When the terms of the loyalty agreement are difficult to enforce directly because of the status relationship or the amount of money is too high, the parties can still claim compensation for divorce damages in divorce proceedings, as long as the fault is in line with the legal circumstances such as bigamy, cohabitation with others, domestic violence and so on.

1. legal basis: the boundary between the agreed property system and public order and good customs

article 1043 of the Civil Code stipulates that husband and wife should be faithful to each other, respect each other and care for each other. This is an advocacy provision for the construction of family civilization, which does not directly give rise to an enforceable claim for compensation. Article 1065, on the other hand, allows a man and a woman to agree on the ownership of property acquired during the marriage and premarital property, which shall be in writing and shall be legally binding on both parties. The property clause in a loyalty agreement usually looks for a validity basis along the path of this agreed property system.

On the other hand, Article 153 of the Civil Code stipulates that civil legal acts that violate public order and good customs are invalid. Provisions that excessively restrict personal freedom and punish the wrong party in extreme ways can easily be found to be contrary to public order and good customs and do not take effect. Compensation for divorce damages is stipulated in Article 1091: If bigamy, cohabitation with others, domestic violence, abuse and abandonment of family members, or other major faults lead to divorce, the innocent party has the right to request compensation for damages. This is a legal channel.

2. Core Points: What Can Get Support and How to Set the Amount

1. What do the terms that can be supported look like?

The part that can be supported generally has three characteristics: first, it is limited to property and does not involve personal relations and personal freedom; Second, the agreement is clear, and the trigger conditions, amount or calculation method can be identified. Third, the amount basically matches the family's economic situation and is not obviously unfair. A common statement, such as one party having an extramarital affair and leading to divorce, pays a certain amount of financial compensation to the other party. In the case of sufficient evidence, the possibility of being supported is relatively high.

Conversely, the following types of clauses are basically invalid: the agreement to give up the custody or visitation rights of children, because the custody and visitation are identity matters and cannot be punished by the parties in advance; the agreement is not allowed to file for divorce or to file for divorce and lose all property, because it restricts the freedom of divorce; the agreement to punish the other party by means of public privacy, unit notification, etc., does not take effect due to violation of public order and good customs. These elements should be excluded from drafting.

2. How the amount of compensation is determined

in terms of the amount, the court did not accept it all. Excessive amounts are reduced on the grounds of manifest unfairness or violation of public order and good morals, and the amount ultimately supported is often commensurate with the size of the family's property, the local standard of living, the degree of fault, and the actual consequences of the damage. The agreement as a fixed astronomical figure is not as safe as the agreement as a calculation linked to the degree of fault and the size of the property.

3. Boundary Conditions: Legality of Evidence and Signing Background

evidence is a barrier between claims and results. To assert that the other party has violated the duty of loyalty, it is necessary to provide materials that can prove the facts of the extramarital affair, such as chat records, photo audio-visual materials, accommodation and travel records, etc. The means of obtaining evidence must be legal. Evidence obtained by invading other people's houses, illegally installing equipment, stealing other people's communication content, etc., may not be adopted due to illegal sources, which may cause infringement disputes and do more harm than good.

Practical Experience of 4. Lawyers

whether a breach of a loyalty agreement can be compensated cannot be generalized. What is more consistent in practice is that provisions related to identity relations and personal freedom, such as leaving the house clean, giving up custody, and not filing for divorce, are generally found to be invalid; and property compensation agreements that do not violate mandatory regulations and public order and good customs, and have clear content, In some cases, it will be supported within a reasonable range, the scale is not uniform, and the amount of abnormally high will be reduced. A more secure understanding is that the compensation agreed upon in the loyalty agreement and the statutory divorce damages are two different bases of claim, and when the terms do not stand, they can return to the statutory channel to claim.

If you want your claim to have weight, the focus falls on two points. On the one hand, it depends on what the terms look like: those that can obtain support are generally limited to property, the trigger conditions and amount or calculation method are clear, and the amount roughly matches the family's economic situation; Agreements to waive custody or visitation rights, restrict freedom of divorce, and punish with public privacy or unit notification are basically invalid and should be eliminated at the time of drafting. On the other hand, the evidence should be legal: chat records, photos, audio-visual materials, etc. that prove extramarital affairs should be obtained by paying attention to the way they are obtained. Those obtained through invasion of privacy, coercion, etc. may not be adopted or even bite themselves.

In terms of amount, the court will not accept it all, and the amount ultimately supported will often match the size of the family's property, the local standard of living, the degree of fault and the actual consequences of the damage. Rather than agreeing on an astronomical figure, it is easier to agree on a calculation linked to the degree of fault and the size of the property, which is more acceptable and more enforceable. After a dispute occurs, one can first judge whether the agreement in one's hand is valid or invalid and whether the evidence is sufficient, and then decide whether to claim compensation by agreement or compensation for divorce damages. It is much more practical to prepare, choose or use both ways at the same time than to keep a "clean body and leave the house.