Insights

What is the legal effect of the letter of commitment written after Ningbo's derailment?

Ningbo Author：LuXu WANG

After discovering that their spouse is cheating, many people ask the other party to write a "letter of guarantee" and "letter of commitment", thinking that they can "let him go out of the house" with this piece of paper ". Does the letter of commitment have legal effect? The conclusion starts with the conclusion that the validity of the letter of commitment depends on the content-the part that confirms the fact of derailment belongs to the self-admission outside the lawsuit and can be used as evidence in the case of divorce; the property compensation or division clause that does not involve the person and does not take divorce as an additional condition, generally has legal effect and can be claimed to be performed accordingly; however, the validity of such contents as "no visits to children" and "no visits to children", which are conditional on restricting personal rights or freedom of divorce, is doubtful or even invalid. This paper combines the civil code and the judicial interpretation of marriage and family to clarify the validity boundary, writing method and the main points of proof of commitment.

Classification of 1. by content: the three types of terms of the undertaking have different effects

A letter of commitment usually contains three types of content, which should be evaluated separately in law:

  1. fact self-admission category: state the fact, time and object of derailment such as "I had an extramarital relationship with ××× in a certain month of a certain year" and "transfer to a third party within marriage totaling ×× yuan. This kind of content belongs to self-admission outside the lawsuit, and can be submitted as evidence in divorce proceedings, which is comprehensively determined by the court in combination with other evidence such as chat records and transfer flow. Its value lies in the fact that the dispute over the "derailment" is locked up in advance, and the room for the party at fault to resubmit his confession afterwards is compressed.
  2. Property division classification: such as "I voluntarily compensate my spouse for a share of a house under my name" "compensation for mental damage x x million yuan" "x x x in the joint property of the husband and wife belongs to the spouse". A property compensation or division agreement that does not involve a person and does not take divorce as an additional condition shall have legal effect, and the party without fault may claim performance on this basis. In practice, it is more prudent to express it as an unconditional promise of gift or compensation, and to handle the transfer, delivery or notarization as timely as possible.
  3. Personal restraint: for example, "if you cheat again, you will leave the house clean", "you will not be allowed to visit your children after divorce", "you will not be allowed to remarry", "you will give up custody of your children", etc. Involving restrictions on the freedom of divorce, deprivation of legal visitation rights and custody, and on the condition of "no remarriage", it is invalid or doubtful because it violates legal provisions or public order and good customs. Article 1043 of the Civil Code stipulates that husband and wife should be faithful to each other is an advocacy clause. If a lawsuit is filed only on this basis, the people's court will not accept it (Article 4 of the Interpretation (I)); The agreement on restricting personal freedom is also not supported.

2. "Clean Out" Clause: Validity Dispute and Practical Attitude

"If you cheat again, you will leave the house" is the most typical dispute clause. It should be noted that the attitude of judicial practice is not completely unified, and the mainstream view can be summarized into three points:

first, loyalty agreements should not be given enforcement power. The faithful duty of husband and wife is an advocacy norm at the moral level. The court generally does not directly order the wrong party to give up all property according to the "clean body and leave the house" clause-the agreement to completely deprive one party of his or her basic property rights and interests is obviously unfair, and it is coordinated with the system of "agreement to deal with the common property of husband and wife and to take care of the woman without fault" in the Civil Code.

Second, but the letter of commitment is not useless. The confirmed fault facts can be used as evidence. If the promised property compensation is reasonable in amount and expressed as unconditional compensation or gift, some courts will serve as a reference for division and even support reasonable compensation agreement in addition to divorce damages (Article 1091 of the Civil Code: bigamy, cohabitation with others and other legal circumstances); Even if it cannot be fully implemented according to the agreement, it is also an important basis for the judge to determine the fault and tilt to the no-fault party in the division ratio-"clean body out of the house" can not get, but "the fault party less points" is entirely possible.

Third, the writing determines fate. Changing "cheating again and leaving the house clean" to "if one party has cheating in marriage and leads to divorce, voluntarily compensate the other party x x ten thousand yuan (or voluntarily less x x%) when dividing the common property", changing from "punitive total deprivation" to "compensation with a clear amount", significantly increasing the probability of obtaining support; Limit the content to the scope of common property without implicating other people's property, the effectiveness is more stable.

Judging from the court's review path, whether the property clause in the undertaking can fall to the ground usually considers five factors: whether the clause is clear (compensation amount and property direction are specific); Whether the amount is fair and reasonable (commensurate with the degree of fault and family economic situation, the abnormally high part may be reduced); Whether to attach personal conditions (the effective condition of "divorce" and "recidivism" is weaker); Whether to dispose of other people's property; whether the conclusion is truly voluntary. In addition, if the compensation involves real estate, equity and other properties that need to be registered, the change procedures must be handled simultaneously, and taxes and third-party rights (such as the preemptive right of other shareholders of the company) must be considered. Otherwise, the commitment will remain at the "creditor's rights level" and cannot resist the appearance of registered rights-"black and white" plus "registration landing", which is the complete property protection chain.

The Connection between 3. Commitment and Property Gift: Explaining the New Rules Brought by (II)

the Interpretation (II) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code, which came into effect on February 1, 2025, provides two clear rules for the disposition of derailed property:

first, Article 7: For the purpose of bigamy, cohabitation with others, and other violations of the husband and wife's duty of loyalty, one of the spouses gives the husband and wife's common property to others (such as donation of third party real estate, transfer of money), and the other party claims that the civil legal act violates Public order and good customs are invalid, the people's court shall support it. In other words, the spouse's gift to a third party can claim to be returned-if the letter of commitment cooperates with the recovery of the property donated to the third party, the path to safeguarding rights will be more complete.

Second, if the undertaking contains the content of "transferring a certain property to a spouse/child" but has not yet transferred the property, which is similar in nature to the agreement between husband and wife to give the property, the rules of Articles 5 and 8 of the (II) on "determining whether to compensate in combination with the duration of marriage, fault, contribution and market price" will be referred to when handling divorce. For example (example, fiction): the man wrote a letter of commitment agreeing to transfer the house purchased and registered in his name jointly with the marriage to the woman, but he has not gone through the formalities. at the time of divorce, the court did not directly decide that the house belongs to the woman, but decided that the house belongs to the woman in combination with the age of marriage, fault and capital contribution and that the man will compensate part of the money-"in black and white" does not mean "property right. timely transfer is the key.

4. how to write an effective letter of commitment: seven practical points

  1. handwriting or personal signature: written and signed by the party at fault, by fingerprint and date; The printout should also be signed by fingerprint to prevent denial of handwriting.
  2. Write down the details of the facts: the name, time, place, specific events and financial transactions of the derailment object should be as specific as possible, and avoid general expressions such as "I was wrong" and "change later"-the more specific the details, the higher the value of self-admission.
  3. The property clause is written as unconditional compensation: not to "divorce" and "re-derailment" as the effective condition, directly write "I voluntarily compensate x x yuan/transfer x x share", reduce the effectiveness of the dispute.
  4. Do not write personal restrictions: delete invalid expressions such as "no divorce, no remarriage, giving up support and visiting" to avoid the whole document being questioned.
  5. Limit the scope of common property: the property of others (such as parents' property) shall not be disposed of, otherwise the part is invalid.
  6. Enhance proof force: original evidence such as chat records and transfer flow can be kept synchronously to confirm each other; Important commitments can be notarized or signed by witnesses.
  7. Keep the original: the original is kept by the no-fault party, and multiple copies are backed up.

In addition, if the party at fault is a public official, a party member or an enterprise executive, the fact of infidelity admitted in the undertaking may also have an impact at the disciplinary or professional level-when the party claims compensation or divorce accordingly, it shall pay attention to confidentiality and legal use of evidence, and shall not threaten to "disclose without giving money", otherwise it may constitute new illegal risks such as extortion; in the fierce conflict, coercion atmosphere to force the other party to sign the letter of commitment, but also easy to "take advantage of the danger, coercion" by the other party to apply for revocation, but self-defeating. Let the writing process be peaceful and voluntary, with witness or video evidence, which not only protects the rights of the other party, but also protects the effectiveness of this evidence.

The combination of 5. commitment: the connection with damages and recovery of gifts.

The value of the commitment alone is limited, and the power of putting it into a "portfolio of evidence" and a "portfolio of rights" is completely different:

in terms of evidence combination, the four-piece set of undertaking (self-admission outside the lawsuit) + chat record (process restoration) + transfer flow (fund verification) + room opening record (whereabouts supporting evidence) bites each other, which can basically lock the fault fact. In order, it is suggested that the wrong party should first write the letter of commitment (at this time, its self-admission intention is the strongest), and then according to the time and place clues in the letter of commitment, to fix the chat record and consumption record-the letter of commitment is equivalent to drawing you a "forensic map". If you promise to write "keep improper relationship with xx from a certain year or month", you will know which time period and person to collect evidence from.

In terms of the combination of rights, there are three parallel claims that can be promoted at the same time: first, compensation for divorce damages. According to Article 1091 of the Civil Code, the innocent party can claim compensation for damages under legal circumstances such as bigamy and cohabitation with others. The fact confirmed by the undertaking is the key to starting the claim (pay attention to the legal situation and the strength of proof); The second is the inclination of property division, the fault confirmed in the undertaking can be used as the basis for the court to score more or less points under the principle of "caring for the rights and interests of the innocent party" (Article 1087 of the Civil Code); The third is to recover the property donated to a third party. According to Article 7 of the (II) of Interpretation, if the common property is donated to a third party for the purpose of bigamy or cohabitation with others, the invalid return may be claimed. The transfer object and amount recorded in the undertaking.

There are also two connecting points that are easy to be ignored: first, if the undertaking contains contents such as "agreeing to give more to the other party in the event of divorce", which is a pre-disposition for future property division, the court will review it in combination with the principle of fairness and express it as "voluntarily compensate the spouse for x yuan due to his own fault (the compensation will not be changed due to the achievement of any conditions)" more safely; Second, after getting the letter of commitment, don't immediately showdown and force divorce-first fix the evidence, evaluate the appeal, and then decide whether to negotiate a divorce agreement or a lawsuit, so that "black and white" can play a role at the right time.

6. FAQ

the fact of cheating is written in the letter of commitment. Can the divorce prove that the other party cheated?

As important evidence, the court generally recognizes its self-admission effect, but will comprehensively determine it in combination with other evidence. If the promise is written in general terms (only "I was wrong"), or if the other party claims that it is written under duress, the probative force will be reduced. It is better to keep chat records, room opening records, transfer records, etc. simultaneously to form a chain of evidence.

Is "cheating again and leaving the house clean" effective?

The mainstream view of the "clean-out" clause, which completely deprives property rights, does not give enforcement power, and the court generally does not directly decide to give up all property on this basis; however, the fact of fault and the agreement on reasonable compensation can be used as a reference for division, and it is entirely possible for the wrong party to divide less. It is suggested that the provision for compensation be reworded with a clear amount.

Do you want the letter of commitment to be notarized?

Notarization is not an effective requirement, and is established from the signature of both parties. Notarization can enhance the probative force, prevent denial of handwriting, and involve large amount of property compensation, it is recommended to notarize or witness.

The letter of commitment was forced to be written by the other party. Can it still count?

If the other party is forced to write a letter of commitment by fraud or coercion, the other party may claim to revoke it. In practice, there are many cases of "writing on the spot and repenting afterwards and claiming to be coerced". The no-fault party should ensure that the writing process is peaceful and witnessed, so as to avoid forcing writing in fierce conflicts. If there are witnesses or simultaneous video recordings, it is difficult to establish a duress defense.

If it is found that the other party has transferred the common property to a third party, can the undertaking help recover it?

Can be claimed separately. According to Article 7 of the Interpretation (II), if a third party's joint property is donated for the purpose of violating the duty of loyalty, the other party may claim that the gift is invalid and request its return.