Insights

Ningbo will not accept the lawsuit based on the "loyalty agreement" between husband and wife.

Ningbo Author：LuXu WANG

During the marriage, the husband and wife signed a "loyalty agreement", which stipulated that one party should compensate the other party for "reputation loss and mental loss compensation of 1 million yuan" if he cheated on the other party. After that, if one party discovers that the other party cheated on the other party, can he sue for compensation based on the agreement? Conclusion first: a loyalty agreement can be signed between husband and wife, which is not prohibited by law, but the court will not accept the lawsuit filed solely on the grounds of violating the loyalty agreement, and the accepted ruling will reject the lawsuit-the loyalty agreement belongs to the category of emotion and morality, and the law does not give it enforcement power; however, the provisions related to property ownership in the "loyalty agreement" may still be considered as fault evidence and discretionary consideration in divorce proceedings, the two are not contradictory.

1. law: the duty of loyalty is an advocacy clause rather than a mandatory obligation.

Article 1043 of the Civil Code stipulates: "The family shall establish a good family tradition, promote family virtues and attach importance to the construction of family civilization. Husband and wife shall be faithful to each other, respect each other and care for each other; family members shall respect the elderly and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations." This article, located in the "General Provisions" chapter of the Marriage and Family Section of the Civil Code, is of an advocacy and declaratory nature: it establishes the moral and legal value direction of conjugal faithfulness, but does not directly set the consequences of civil liability for "breach of faithfulness. In other words, the duty of loyalty is not an obligation to pay that can be used as "consideration" for the subject matter of the contract.

The substantive provisions related to damages are Article 1091 of the Civil Code: If one of the following circumstances leads to a divorce, the innocent party has the right to claim damages: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) abuse, abandonment of family members; (V) other serious faults. It can be seen that the law only grants the right to claim damages to the innocent party under legal circumstances such as "bigamy" and "cohabitation with others" and on the premise of "divorce"; whether "derailment" in the general sense belongs to "other major faults" is determined by the court in the case. Divorce damages and loyalty agreement compensation are two different things: the former is a legal right, the latter is the agreed "liquidated damages", and the court holds a negative attitude towards the enforcement of the latter.

2. Supreme Law Position and Reason Dismantling

the Supreme People's Court made it clear in the Understanding and Application of the Marriage and Family Section of the the People's Republic of China Civil Code that the signing of a loyalty agreement between husband and wife should be performed voluntarily by the parties in accordance with the principle of good faith. The law does not prohibit the signing of such agreements between husband and wife, but It does not give such agreements enforcement power. Considering the overall social effect, the court should not accept the loyalty agreement disputes between husband and wife. There are three reasons:

  1. side effects of evidence collection: if such disputes are accepted, the party claiming compensation should not only prove that the agreement is true without fraud and coercion, but also prove that the other party has violated the loyalty agreement, which may induce "catching rape", tapping phone calls, opening letters privately and even more serious privacy infringement, and the emotional entanglement between husband and wife may even turn into a criminal offence, and the negative effects should not be underestimated;
  2. the risk of marriage deterioration: giving the loyalty agreement the enforceability is equivalent to encouraging the signing of the agreement to "tie" the other party before marriage, increasing the cost of marriage and making the marriage relationship based on emotion and trust deteriorate;
  3. moral attribute orientation: the essence of loyalty agreement belongs to the category of emotion and morality, and it is good to perform it voluntarily-it is the result of moral introspection that one party is willing to "clean his body and leave the house" or compensate for money. However, when one party is unwilling to perform, it should not be forced to perform.

The caliber of the local high court is consistent with this: the Shanghai High Court's Questions and Answers on the Application of Civil Law (No. 1, 2003) clearly states that if one of the spouses sues for performance of the agreement or payment of liquidated damages or compensation for losses only on the grounds that the other party violates the loyalty agreement, the people's court will not accept it. Except for the circumstances stipulated in Article 46 of the Marriage Law (Article 1091 of the current Civil Code), where the divorce case, liquidated damages or damages are demanded for violation of Faith, the court dismissed the application. The Jiangsu High Court's Guidelines for the Trial of Family Dispute Cases (Marriage and Family Part) (2019) also stipulates that if one of the spouses sues to confirm the validity of the loyalty agreement, or claims that the other party is responsible for violating the loyalty agreement, the ruling shall not be accepted, and the accepted ruling shall reject the prosecution.

3. typical case: the relationship between the terms of loyalty agreement and the division of divorce property

in 2019, the top ten typical cases of marriage and family in Jiangsu court, "divorce dispute between Li mou and ma mou", provided a clear demonstration: Li mou (male) and ma mou (female) registered their marriage in 2012, and after marriage, Li mou and Luo mou of the opposite sex had two pregnancies due to improper communication. In January 2017, the two parties signed an intramarital agreement, stipulating that if one party causes divorce due to fault (extramarital affairs, etc.), the daughter will be raised by the innocent party, and the innocent party will give up all the property under the couple's name and compensate the innocent party for 200000 yuan. After the agreement was signed, Li still had contacts with Luo and had children. Li filed for divorce. Ma advocated to deal with the upbringing of children and the division of property according to the agreement. The court of first instance held that the agreement on child support in the agreement involves identity and should be invalid. The agreement on property division and economic compensation is a loyalty agreement, which does not belong to the case of marital property agreement. Ma claimed that there is no legal basis for this. However, considering Li's obvious fault in the marriage, Ma, who has no fault, should take care of him at his discretion, integrating the child's growth experience, the income of both parties and the source of family property, it was decided that the daughter lived with Ma, who got 70% of the couple's common property. The second trial upheld the original verdict. The main purpose of the judgment: the loyalty agreement concluded between husband and wife should be consciously performed by the parties concerned, and the law does not give it enforcement power, which can not be used as a direct basis for dividing the joint property of husband and wife or determining the ownership of child custody-but the fact of fault is still an important consideration for the court to "take care of the innocent party at its discretion.

This can be used to refine the "dichotomy" in practice ": the loyalty agreement cannot be directly used as the basis for the claim, but it can be used as evidence of fault.-The agreement itself proves one party's self-commitment to the duty of loyalty, and in conjunction with the evidence of infidelity, it can support the no-fault party to obtain a preference for property division in divorce proceedings (Article 1087 of the Civil Code, the principle of "taking care of the rights and interests of children, women and the no-fault party") and compensation for divorce damages (Article 10

91of the Civil Code).

4. boundary situation and practical tips

the following situations need to be distinguished:

  1. if the loyalty agreement also contains the "property agreement clause" (if it is agreed that a certain property is owned by one party), if this part meets the requirements of article 1065 of the civil code (written, true, not in violation of the law and public order and good customs), it can be handled according to the property agreement-what is rejected is only the "liquidated damages clause conditional on infidelity", not the whole agreement;
  2. the clause with the content of "clean body and leaving the house" cannot be directly enforced when it conflicts with the legal property system, but it can be used as a reference factor for the division of property and the care of the innocent party during divorce;
  3. the provisions on the attribution of the custody of the children are invalid because they involve the identity relationship, and the custody can only be determined according to the principle of the most beneficial to the minor children;
  4. if infidelity constitutes bigamy or cohabitation with another person, the no-fault party may claim damages for divorce directly under Article 1091 of the Civil Code without relying on a loyalty agreement.

The Fixation of 5. Evidence and the Coordination of Two Rights Protection Paths

the loyalty agreement cannot be claimed, which does not mean that the wrong party is "unscathed". When the other party is found to be derailed, two paths should be taken at the same time:

  1. fixed evidence: fixed evidence around "bigamy, cohabitation with others, other major faults"-common residence records, travel and accommodation records, testimony of relatives and friends, birth information of children, etc.; Pay attention to the legality of evidence collection means, evidence obtained by invasion of privacy may be excluded, and the act of obtaining evidence may also constitute infringement;
  2. claims in divorce proceedings: in divorce proceedings, a claim for damages is filed in accordance with article 1091 of the civil code, and in accordance with article 1087, it is claimed to take care of the no-fault party in the division of property-the loyalty agreement is submitted together as documentary evidence to prove that "the other party believes that the obligation of loyalty and violates the promise", and forms a chain of evidence with the evidence of infidelity;
  3. limitation and procedure: if the innocent party is the defendant in divorce proceedings, the claim for damages may be filed separately after the divorce (there is a legal time limit); As the plaintiff, it should be filed together in the divorce proceedings-the main points of the procedure must be grasped in advance to avoid the "expiration" of rights ";
  4. remedy of marital property arrangement: if divorce is not allowed for the time being, it may take the opportunity to sign a standardized marital property agreement (article 1065 of the civil code) to rearrange the ownership of property and upgrade "moral restraint" to "legal restraint".

In a word: the role of loyalty agreement is "evidence" rather than "judgment"-the real property arrangement that can be fulfilled depends on the standard written agreement, not the moral punishment clause.

The right combination of 6. loyalty agreement and property agreement and divorce agreement.

Mixing "loyalty" and "property" in the same document is the most common failure in practice. The correct way to combine is in layers:

  1. the first layer: marital property agreement (Article 1065 of the Civil Code): clearly write down the ownership of real estate, deposits, equity and other property in a standardized written form, which is a "hard clause" that can be implemented in accordance with the agreement ";
  2. the second layer: Loyalty declaration clause: expressed as the self-commitment of both parties to the marriage loyalty and the mechanism of confirming the fact of fault (such as what kind of evidence can be used to determine the fact of cheating), as the evidence of fault in the future divorce, rather than an independent basis for the right to claim compensation;
  3. the third layer: the connection of divorce agreement: when divorce is really reached, the division of property, child support and fault compensation will be written into the divorce agreement and registered or confirmed through mediation-at this time, the enforcement force of the agreement will really fall to the ground.

In a word: the loyalty agreement is responsible for "leaving traces", the property agreement is responsible for "cashing", and the divorce agreement is responsible for "closing"-the three perform their respective duties in order to transform moral constraints into legal protection.

7. FAQ

do loyalty agreements work?

Useful, but put it right. It cannot be used as an independent basis for claim (the court will not accept it), but it can be used as evidence to prove one party's fault and claim the division of property in the divorce proceedings.

After signing the agreement of "cheating and leaving the house clean", can the other party cheat and let him leave the house clean?

It is not possible to directly implement "clean out of the house" according to the agreement ". The court will incline to the no-fault party in the division according to the degree of fault, the source of property and the situation of children (article 1087 of the civil code), but the agreement itself has no enforcement force. If cheating constitutes bigamy or cohabitation with another person, divorce damages may be claimed in accordance with article 10

91of the civil code.

Will the court accept the prosecution's request to confirm the validity of the loyalty agreement?

According to the Jiangsu High Court and other standards, if one of the spouses sues to confirm the validity of the loyalty agreement or claims responsibility on the grounds that the other party violates the loyalty agreement, it is ruled not to be accepted, and the accepted ruling rejects the prosecution-the confirmed lawsuit is also not accepted.

If you find that the other party is cheating but doesn't want to divorce, can you sue for compensation?

Can't. The compensation for divorce damages in Article 1091 of the Civil Code is based on the premise of "leading to divorce"; if there is no divorce, the issue of loyalty is a moral category and the court will not deal with it. What can be done at the stage of non-divorce is to rearrange the ownership of property and fix the evidence of fault through the marital property agreement (Article 10

65of the Civil Code).

The marital agreement agreed on "the 500000 of compensation in the event of divorce", can it be directly enforced? Does the loyalty agreement need to be notarized to be valid?

Depending on the nature of the terms: if it is a punitive breach of contract conditional on derailment, the court does not support enforcement, and if it is a voluntary arrangement between the parties for the distribution and compensation of property (e. g. the 500000 of the other party for the sale of a property), the part that meets the agreed elements of the husband and wife's property may be dealt with as agreed. The key depends on whether the clause is "moral punishment" or "property arrangement". Notarization is not a requirement for a loyalty agreement to take effect-the agreement itself is not invalid because it has not been notarized, nor is it (crucially) enforceable because of notarization. Notarization can only prove the authenticity of the signature and fix the signing time, which is helpful to the "coerced signature" dispute, but it cannot change the court's attitude of "not enforcing" the loyalty clause.