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Ningbo Derailment Guarantee Template

Ningbo Author：LuXu WANG

finding that their spouse is cheating, many people will ask the other party to write a "letter of guarantee" or "letter of repentance": to admit the fact of cheating, to promise not to commit it again, and even to promise to "go out of the house if you cheat again". Whether such documents are useful and how to draft them effectively are frequent questions in divorce consultations. Direct conclusion: the guarantee has three functions and different effects-first, as a written admission, it is the most powerful evidence to prove the fact of derailment, which directly affects the determination of "caring for the innocent party" in divorce damage compensation and property division; Second, the clause restricting feelings ("guarantee not to cheat again") itself cannot be enforced, and the court will not judge who a person "must love"; Third, the property consequences clause ("re-derailment property to the other party") belongs to the scope of the husband and wife's property agreement, which is binding but not necessarily fully supported, and the general expression of "clean out" may be adjusted in litigation. When drafting a written pledge, focus on two key points: acknowledging the facts of your wrongdoing and specifying the financial consequences. Don’t expect a single piece of paper to save your marriage, but make sure it serves as solid evidence for protecting your rights in the future.

1. The evidentiary function of a guarantee letter: to document "infidelity" It is generally accepted that it is difficult to obtain evidence in

derailment cases, and the letter of guarantee/repentance is written and signed by the derailment party, which is the best evidence to prove the fact of fault. It can at least prove that the party who engaged in infidelity once acknowledged having extramarital sexual relations or an ambiguous relationship—such acknowledgment directly affects three layers of legal consequences in divorce proceedings:

  1. Compensation for Divorce-Related Damages: Article 1091 of the Civil Code provides that if divorce is caused by bigamy, cohabitation with another person, domestic violence, abuse or abandonment of family members, or other serious misconduct, the party at no fault has the right to claim compensation for damages. General adultery may not necessarily constitute “bigamy or cohabitation with another person,” but it may fall under the catch‑all provision of “other serious misconduct.” The more specifically the facts of the misconduct are set forth in the undertaking, the more likely they will be recognized as constituting serious misconduct.
  2. Property division takes care of the party without fault: The first paragraph of Article 1087 of the Civil Code stipulates that the divorce property division takes care of the rights and interests of the children, the woman and the party without fault, and the written fault evidence is the basis to strive for the care ratio;
  3. custody contention: Article 14 of the (II) of interpretation makes it clear that if one party has bigamy, cohabitation with others or other serious violation of the duty of husband and wife, the children over two years old should be directly raised by the other party in principle-the guarantee is almost the evidence of "winner or loser" in such cases.

Operation suggestions for the non-fault party at the level of evidence: let the derailment party write, sign, hand-print and date, and specify the specific object, time, place and times (the more specific, the stronger the proof force); take photos or copy them on the spot and keep the original properly-once the original is robbed and destroyed by the other party, the copy and photo can still be submitted as evidence, but the proof force is discounted, so "take photos first, then receive the original".

2. The validity boundary of the guarantee as a "contract"

A guarantee letter may also include provisions for the transfer of property (such as compensation, leaving the marital home with nothing, or waiving a share of real estate). The rules governing this portion are subject to differing interpretations in judicial practice and require a layered analysis.

  1. Clauses that restrict personal conduct are invalid: Agreements to “remain faithful” or “never cheat again” fall within the realms of emotion and personal freedom and cannot be enforced—should the other party cheat again, what you obtain is not “breach-of-contract damages” but rather new evidence of fault.
  2. Property provisions shall be governed by the marital property agreement.: If the guarantee states that "if there is another derailment, the property/deposit of such and such is owned by the woman", the content is specific and the real intention of both parties, and the court tends to recognize its binding force according to the matrimonial property agreement in Article 1065 of the Civil Code; but if the terms are obviously unfair (such as deprivation of all property, obviously beyond the other party's affordability) or signed under duress, they may be adjusted or revoked;
  3. The risk of the clause conditional on divorce: if the clause stipulates that "all the property belongs to the woman at the time of divorce", the property division agreement with the nature close to the divorce conditions -- according to the spirit of the relevant judicial interpretation, if both parties do not agree to divorce and one party repents in the divorce proceedings, the property clause may be deemed not effective and can only be used as a reference for the division. Therefore, a guarantee agreement should avoid stating “who will receive the property in the event of divorce” and instead specify an immediate disposition of property—such as “in the event of further infidelity, as compensation to the wife, certain property shall belong to the wife”—which carries greater legal certainty.
  4. Risks in general expression of "clean body and leave home": only write "if derailment again, the man clean out of the house", the property scope and share are not clear, the court is difficult to enforce, most cases can only identify the fault and discretionary compensation, it is difficult to support "all the property belongs to the woman". Writing down the property specifically is a prerequisite for the guarantee to take effect.

3. Checklist of Evidence and Legal Actions After Discovering Infidelity

  1. fixed guarantee: let the derailment party make self-recognition of the derailment fact (time, object, number of times) in writing;
  2. Supplementary evidence: chat records (keep the original carrier, do not delete), transfer records (extra-marital expenses), room opening records (obtained through legal channels), photos and videos (pay attention to the legal means of evidence collection, public shooting is better than private shooting, to avoid invasion of privacy but illegal);
  3. Recovering gifts given outside of marriage: If the cheating spouse uses marital joint property to gift a third party, such a gift is invalid for violating public order and good morals (Interpretation (II), Article 7); the non-faulty party may file a lawsuit to demand its return—bank transfer records are the key evidence.
  4. Property preservation and division claims: if the other party is found to transfer property or continue to spend a large amount of money, apply for preservation and claim to divide little or no in divorce proceedings (Article 1,092 of the Civil Code);
  5. suit for damages: in case of serious fault, claim damages together in divorce proceedings (article 1091);
  6. Personal safety protection: If derailment is accompanied by domestic violence, apply for personal safety protection order (relevant procedure of anti-domestic violence law).

List of key points 4. drafting the guarantee

  1. The factual part is concrete: specify the derailment object, time period, frequency and way (such as cohabitation/house opening/ambiguity), and establish the evidence value for "self-admission;
  2. Concretization of property consequences: list specific property (property location, vehicle, deposit account) and attribution arrangement to avoid the vague expression of "leaving the house clean;
  3. Avoid clauses that restrict personal freedom: Do not include provisions such as “no divorce,” “no remarriage,” or “waiver of custody rights.” Such clauses are invalid and may undermine the credibility of the entire document.
  4. Clearly indicate voluntary signing: State “I am signing this voluntarily and while fully conscious, and I am aware of the legal consequences,” to reduce the likelihood that coercion will be alleged in the future.
  5. Original Preservation and Backup: Prepare two copies or take photos on the spot; the original shall be kept by the party not at fault.

Legality of 5. evidence collection and evidence fixation in negotiation

The evidence collection of derailment cases is easy to "win the lawsuit and lose the reason", and the legal boundary must be kept:

  1. Positive list of legal evidence collection: the other party's self-confessed letter of guarantee/repentance; photos and videos of peers and intimate behaviors in public; mobile phone chat records (keeping the original carrier, complete screenshots or screen); bank flow of extra-marital transfers (applying for retrieval in litigation); ambiguous messages sent by the other party voluntarily. The above evidence access does not infringe on the privacy and personal freedom of others, the court generally accepted;
  2. The red line of illegal evidence collection: intruding into the third party's residence to install cameras, wiretapping the phone, obtaining evidence by the threat of violence, invading the other party's mobile phone system, etc., the evidence collection itself may constitute infringement or even crime, and the relevant evidence may be excluded due to illegal acquisition, and it will also attack itself-ask "whether the means are legal" before obtaining evidence ";
  3. Negotiation strategy when "grasping the current situation": Don't show your cards immediately after finding the derailment, first let the time settle, let the other party leave more written self-confisseance (chat record, transfer) without knowing it, and then choose the opportunity to ask for a written guarantee; Avoid the threat of "exposure without giving money" when negotiating, which will slide from civil rights protection to criminal risk of extortion;
  4. Application of recording evidence: The recording of the other party admitting cheating in the conversation between the two parties is legal evidence (the recorder himself participates in the conversation and does not violate the privacy of others), but the recording must be complete and the original carrier retained, and the evidence of the editing and splicing recording is greatly reduced;
  5. preservation and backup of evidence: electronic evidence is backed up in the cloud at the first time + notarized preservation (chat records can be notarized and preserved by the notary office to prevent loss after the other party's withdrawal and deletion), and important originals are stored properly after being photographed and copied.

finally, it suggests a time point problem that is often ignored: the infidelity evidence and the guarantee should be fixed "while it is hot"-the longer the time is, the more likely the other party is to deny and the more difficult it is to supplement the evidence; and once the lawsuit is entered, the court will examine the "recall evidence" created afterwards extremely strictly. Discovery and immediate preservation are the lifeblood of evidentiary value.

6. Expected amount of damages and depth of evidence

Claiming divorce damages under the warranty, the amount expected to be aligned with the depth of evidence required:

  1. Legal basis: Article 1091 of the Civil Code stipulates that in case of divorce caused by bigamy, cohabitation with others, domestic violence, maltreatment and abandonment of family members or other serious faults, the innocent party has the right to claim damages; Article 86 of the (I) on the Interpretation of Marriage and Family clearly states that the "damages" includes material damages and mental damages;
  2. Amount of reference factors: the court's discretion of mental damage compensation mainly depends on the circumstances of the fault (duration, whether or not to give birth to unmarried children, degree of publicity), the consequences of the fault (injury to the innocent party, destruction of marriage), the economic capacity of the guilty party and the local living standard. In practice, it ranges from thousands to tens of yuan, and property division are two tracks-damage compensation is the embodiment of fault liability, multiple property is the embodiment of the principle of care, both can be claimed at the same time;
  3. The connection between the guarantee and the damage compensation: the "cohabitation with others" and "long-term derailment" confirmed by the guarantee are the direct basis for determining the major fault and the amount of compensation; if only "general derailment" is recognized, it can be determined according to other major faults; the party without fault should also fix the evidence of damage consequences (depression diagnosis, psychological treatment record) for the reference of mental damage compensation;
  4. Limitation of Claim: The innocent party, as the plaintiff, claims for damages in divorce proceedings; If the defendant does not agree to divorce but sues for damages separately, he may file the claim within one year after the divorce; If the claim is not made at the time of divorce and the fault is found only after the divorce, the corresponding limitation shall be calculated from the date of knowledge-the specific calculation shall be subject to the case situation and the court's interpretation, so on.

Rational expectations suggest that the essence of damages lies in “compensation” rather than “punitive damages,” and the amounts are limited; what truly reshapes the distribution of assets are issues such as unequal division of marital property and the recovery of gifts made to third parties outside the marriage. It is more valuable to use the guarantee on the cutting edge-proving the fault, striving for more points, and supporting the recovery of the third party's income, than to struggle with the amount of compensation itself.

Linkage decision framework after 7. derailment

The guarantee is just one of the tools, and the overall decision-making proposal after the derailment is promoted by four steps of "evidence-property-children-relationship:

  1. Evidence Layer: The guarantee letter, chat records, and transfer records are simultaneously preserved to establish a dual evidentiary chain consisting of “written admission” and “funds flow.”
  2. property layer: sort out the list of common property, find abnormal transfer and immediately fix the clue of flowing water, and apply for preservation if necessary; start to recover the property donated to the third child;
  3. Children's level: If divorce is imminent, evidence of infidelity, as interpreted under Article 14 of (II), will affect the determination of custody rights; those who intend to contest custody should gather and organize caregiving evidence in advance.
  4. relationship layer: if you decide to forgive, use "guarantee + property agreement + marital agreement" to rebuild the trust framework and agree on the property consequences of repeated offenses; if you decide to divorce, prepare the bargaining chips (evidence, property and children) for a showdown to avoid emotional naked talks.

The final advice to the no-fault party: Emotions can be there, and actions should be rational-the most taboo in cheating events is "using illegal means to vent anger" (exposing privacy, making trouble at home, threatening with exposure). These actions will change oneself from a "victim" to an "infringer" or even a criminal suspect. The real protection for oneself and children is to transform anger into evidence fixation and plan promotion.

8. FAQ

guarantee to write "if you cheat again, you will leave the house clean", does the court support it?

It depends on the content: if the terms are specific (property is listed and the nature of compensation is stated), there is more room for support according to the agreement on the property of the husband and wife; if only "clean body and leave the house" is written in general, it is difficult for the court to enforce it, which usually translates into the determination of the fault and the discretionary compensation. The innocent party should not expect a piece of paper to "kill all", but should write down the property clearly.

Can the guarantee directly prove that the other party "lives with others" and claims for compensation?

The fact of cohabitation admitted by the guarantee is an important evidence, but the court will still examine the continuity and stability of cohabitation; if the guarantee only admits "cheating once" or "ambiguity", it will not reach the level of "cohabitation with others", but it can strive to claim damages according to "other major faults" and take care of the innocent party in the division.

The guarantee was robbed and torn up by the other party. Is it still useful?

It is useful to have a backup: if you take photos and copy them in advance, the copy/photo plus other corroborating evidence (chat record, transfer) can still be submitted to the court although the original is lost; if there is no backup, you can only rely on other evidence to supplement it. This is also the reason for "taking photos before receiving the original.

After signing a written guarantee, the other party has cheated again. Can I directly demand that they fulfill the terms of the agreement? The specific provisions regarding property disposition in Clause

may serve as a basis for claims (and, in litigation, shall be treated as a marital property agreement); overly general provisions may only be used as evidence of a new fault. At the same time, note that the fact of another derailment itself must be proved by new evidence, and it cannot be presumed that "another derailment" based on the guarantee ".

After getting the guarantee, the other party turned against him and said he was forced to write it. What should I do?

If the guarantee is written and signed by the other party with specific content and no traces of violence and coercion, the court usually believes it; if the other party claims coercion, it must be proved by the other party. When signing, let the other party state that "I voluntarily sign and know the legal consequences", which can significantly reduce the space for confession; If there are witnesses or audio and video recordings in the signing process, the probative force is stronger.