What should I pay attention to in the guarantee written after Ningbo's derailment
Is it possible to sit back and relax if the other person's derailment is broken and write down the guarantee on the spot? To pour cold water on the ground: the property consequences promised in the guarantee are not necessarily protected by law, but the fact of derailment stated in the guarantee can be used as evidence, and the power of proof is far beyond the chat screenshots. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence have many defects in proof and are difficult to accept. The guarantee is a written document, once signed, a stable record of facts will be formed-so the conclusion is that the guarantee must not only be signed, but also countersigned. This article clearly explains the four questions of "when to sign, what to write, how to sign and the geometry of effectiveness.
When will 1. sign: seize the "showdown gold window"
the value of the guarantee is half in content and half in timing. The best time to sign a contract is the first time to "seize the handle and have a showdown on the spot"-at this time, the other party is in a state of guilt and panic, and is most likely to sign without consideration. Once he is given time to think and space to discuss with his family, he will weigh the pros and cons, consult and deal with it, even delete records and destroy evidence, thus missing the best time to sign the guarantee. Therefore, it is recommended to prepare the guarantee (stating the basic framework and key elements) before the showdown, and at the same time take out the guarantee for the other party to sign on the spot. This window period is often only a few hours to a day, miss that is difficult to get again. If the other party refuses to sign, don't tear your face on the spot. You can settle for the next best thing: guide the other party to recognize the fact of derailment in words in WeChat chat (such as "I'm sorry for you, and I admit something about XXX"). The words self-recognition also have evidential value, and the formation time and content are easier to fix.
What 2. Write: Facts, Promises and Responsibilities
A qualified guarantee should contain three levels of content: the first level, identity and background-stating the identity information of the signer, why he signed, and a statement of voluntary signature ("I voluntarily sign this guarantee without any coercion"), laying the foundation for the authenticity and legality of the instrument, self-admission of the fact of infidelity-first write down when, with whom (name), and how many improper relationships, the statement should be specific, and it is best to include verifiable details (such as dating place, amount of transfer, hotel itinerary), which is the most valuable part of the whole guarantee-to "nail" the fact of infidelity in marriage; The third layer, guarantee matters and responsibilities-promise not to have improper contacts with the opposite sex other than the spouse (including but not limited to sexual relations, intimate contact, being alone, buying gifts, ambiguous chat, etc.) from the date of signing, and agree to voluntarily bear the consequences of violating the promise, such as giving up the ownership of specific property or giving the other party monetary compensation. The final signature is printed by hand and the date is clearly written. Each page of a multi-page document must be signed by hand, and the last page must be marked with the date of signing. What needs to be reminded is that the more specific the guarantee is, the more binding it is, and the general "live a good life in the future" lacks enforceable content. The more certain the facts are, the more evidence is. "Having an improper relationship with XXX" is far more valuable than "doing something sorry to you.
3. effectiveness geometry: the fact part is excellent, the property part is discounted.
The legal effect of the guarantee is divided into two parts. As far as the factual self-admission part is concerned, it belongs to documentary evidence, which is stable and superior to electronic evidence: the fact of derailment admitted by the guarantee can be used as the basis for determining the fault plot in divorce proceedings, and provides support for the compensation for divorce damages and the division of property to take care of the no-fault party. According to the divorce case of Meishan Court of Beilun District Court reported by Zhejiang Rule of Law News on October 13, 2021, the husband remarried and gave birth to two children with others, and the court decided to compensate 150000 yuan in economic compensation and 50000 yuan in damages-the evidence basis for such compensation claims is often a written admission that takes the facts into account. As far as the property commitment part is concerned, there is a boundary in effect: clauses such as "leaving the house clean and giving up all property in case of further derailment" involve the nature of "loyalty agreement" with property ownership as loyalty consideration. judicial practice has different attitudes-some courts recognize its certain binding force between husband and wife, some courts believe that clauses that excessively restrict personal freedom or are obviously unfair are invalid and cannot oppose creditors externally. A more secure way of writing is to set the consequences of a breach of commitment as "financial compensation to the other party" or "disposition of specific property", rather than a general "clean out of the house"; At the same time, it is clear that the guarantee does not constitute a restriction on the freedom of divorce (such as "no divorce" and other provisions are invalid). Even if the property clause is partially invalid, it does not affect the evidentiary validity of the factual self-admission part-this is the fundamental reason why the guarantee "signed is better than not signed.
How to Sign and Use 4.: Operation List
matters needing attention in the signing process: first, it is better to have a witness or audio and video recording of the whole process (pay attention to legality) to prevent the other party from claiming "coercion" afterwards; Second, it should state "voluntarily sign without coercion" and let it be confirmed by hand. Third, the signature of each page of multiple pages should be fingerprinted to prevent the page from being changed. Fourth, the original should be properly kept and notarized or witnessed by a third party should be witnessed if necessary to enhance the proof; fifth, the synchronous fixed matching evidence-transfer records, chat records, photos, etc. and the guarantee to confirm each other, forming a complete chain of evidence. Use link: when submitting as evidence in divorce proceedings, explain the formation background and authenticity of the guarantee; If the other party claims coercion, submit the audio and video recording and chat record of the signing process to refute it. The guarantee and electronic evidence can be used together to make up for the short board of single electronic evidence and easy to be questioned.
5. common mistakes
myth 1: Ensure that writing can make the other party clean out of the house. Positive solution: the validity of the general "clean out" clause is in doubt, the property consequences should be written as specific, enforceable compensation or disposition arrangements.
Myth 2: If the other party didn't sign it when he cheated, it will be useless in the future. Positive solution: missing the opportunity on the spot can be remedied by means of written self-admission and post-signing. The proof of post-signing is weaker than that of signing on the spot, but it is still valuable.
Myth 3: A guarantee can limit the other party's divorce or personal freedom. Positive solution: the provisions restricting the freedom of divorce and personal freedom violate the mandatory provisions of the law and are invalid.
Myth 4: There is no need for other evidence with a guarantee. Positive solution: the guarantee is an important part but not all, and the transfer records, chat records and other forms of evidence chain, in order to support damages and property claims.
6. Portfolio Instruments and Evidence Management
the power of a single guarantee is limited, and the smart way is to build a complete line of defense with "combined documents": ① guarantee-fixed derailment facts and promises; ② repentance letter-let the other party write a handwritten statement of the time and place of acquaintance and communication with the third party, the more specific the details, the more difficult it is to withdraw the confession; ③ property agreement-sign the marital property agreement and debt commitment arrangement when the other party is at the time of loss (pay attention to the wording);④ Transfer records and chat records-as circumstantial evidence of self-admission of fact; ⑤ Audio and video recording of the signing process-fixed voluntary, to prevent "being coerced" to overturn the case. Five types of materials complement each other: the letter of guarantee establishes facts, the letter of repentance supplements details, the property agreement establishes interests, the chain of electronic evidence, and the voluntary guarantee of audio and video recordings. In terms of document management, the originals are stored in a centralized way, copied and backed up, and notarized or stored by a third party for important matters. Do not carry the original with you everyday to avoid losing it, and do not easily give the original to the other party to "look at it". What needs to be reminded is that the combined instrument is still based on legality: the instrument forced to sign under the condition of restricting the personal freedom of the other party may be deemed to be coerced and revoked, and the control of the signing scene is equally important.
7. FAQ
the amount of compensation written in the guarantee is too high, will it be adjusted by the court?
Possibly. Compensation agreements that are clearly abnormally high and are clearly out of balance with the degree of fault and the economic situation of both parties may be reduced by the court in accordance with the principle of fairness; those that are set within a reasonable range, expressed as voluntary compensation and are equivalent to the damage are more likely to be supported. Instead of writing "astronomical figures", it is better to write "cashable amounts".
The other party said that the guarantee was forced to sign. Is it still usable?
Look at the evidence. If the guarantee states "voluntarily signed and not coerced" and the signing process is witnessed or recorded, the defense of coercion is difficult to establish; on the contrary, if there is evidence of violent coercion, the instrument may be revoked. The retention of voluntary evidence at the time of signing is a prerequisite for a good guarantee.
The guarantee says "500000 if you cheat again", does the court support it?
Judgments vary from place to place: reasonable compensation agreements equivalent to the degree of fault are supported by some courts; those that are obviously too high, unfair or deemed to restrict personal freedom may be adjusted or denied. It is recommended that the amount be set within a reasonable range and expressed as "voluntary compensation" rather than a punitive "fine".
Can the guarantee be used as a direct basis for divorce damages?
Compensation cannot be "directly" awarded, but it can be used as key evidence to prove the fact of fault: the fact of derailment admitted by the guarantee, together with other evidence to meet the standard of proof, the court can determine the fault and determine the damages accordingly.
After signing, it was found that the guarantee was lost. Is there any remedy?
You can try to ask the other party to re-sign and state that "the previous commitment continues to be valid"; Or let the other party reconfirm the fact of infidelity through chat records and audio recordings. Copies can also be used in conjunction with other evidence, but the proof is weaker than the original. Keeping the original is the basic lesson.