How to distinguish between husband and wife property agreement, divorce agreement and loyalty agreement in Ningbo

In real life, people often hear about “marital property agreements,” “divorce agreements,” and “loyalty agreements.” So what are the differences among these three, and what legal effects do they produce?

1. Regarding the issue of "spousal property agreements"

Article 1065 of the Civil Code stipulates: "The man and the woman may agree that the property acquired during the marriage and the pre-marital property shall be owned by themselves, jointly or partly by themselves or partly by themselves. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply." “Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties.” “If, during the subsistence of the marital relationship, the spouses agree that property acquired during such period shall belong to each of them individually, and a third party is aware of such agreement, any debt incurred by one spouse shall be discharged with the individual property of that spouse.”

1. Enter into a marital property agreement

The following aspects must be taken into account:

1. When a married couple enters into a property agreement, they must adhere to the principle of genuine and voluntary consent; any agreement executed under duress or through fraud is null and void.

2. The agreement shall be in writing. Article 1,065 of the Civil Code stipulates that any agreement must be in writing; therefore, agreements made orally or in any other form do not comply with the law.

3. The agreed-upon terms should be clear and unambiguous. If the agreement is unclear, the provisions of Articles 1062 and 1063 of the Civil Code shall apply.

2. The legal effects arising from a marital property agreement

1. Internal Effectiveness: Any agreement between spouses regarding property acquired during the marriage as well as premarital property shall be legally binding on both parties; either party that breaches such an agreement shall bear the corresponding liability for breach of contract.

2. External Effect: The system of matrimonial property agreements produces different effects on third-party creditors depending on the specific circumstances.

(1) If a third party, as a creditor, is aware of the property agreement between the debtor and his or her spouse, the debt shall be satisfied by the personal property of either the husband or the wife.

(2) If the third person who is the creditor knows nothing about the property agreement of both husband and wife or both husband and wife deliberately fabricate the property agreement of husband and wife in order to avoid debts, the property agreement of husband and wife cannot oppose the third person.

2. Regarding the issue of the "divorce agreement"

Article 1,076 of the Civil Code stipulates: “Where both spouses voluntarily seek divorce, they shall enter into a written divorce agreement and personally apply for divorce registration at the marriage registration authority.” “The divorce agreement shall set forth the parties’ mutual consent to divorce and their mutually agreed-upon arrangements regarding child custody, property division, debt settlement, and other related matters.” These are the relevant legal provisions in China governing divorce agreements.

1. If a divorce agreement has been reached but the divorce proceedings have not yet been completed, can this agreement be used as the basis for a court decision in a divorce lawsuit?

The premise for the divorce agreement to take effect is that after both parties have gone through the divorce registration or divorce in the court agreement, if the divorce agreement has been signed, the divorce agreement that one party regrets will not take effect before going through the divorce procedures, and either party has the right to regret the property division and child support involved in the divorce agreement.

The Supreme People's Court held in the Civil Ruling No. 8 of (2013) Min Zaishen Zi: "On the issue of the validity of the division of property in the divorce agreement and whether Yu Shunhua should compensate Zhong Hongyuan again. After investigation, although the divorce agreement in this case was signed by both parties, the two did not go through the divorce procedures accordingly, but passed the court decision to divorce. Accordingly, the agreement on the division of property in the divorce agreement between the two parties can only be used as evidence in litigation when the marriage relationship is not dissolved, and cannot be directly used as the basis for court decisions."

2. If both parties handle divorce procedures, but one party refuses to implement the divorce agreement, can the other party sue the party to the people's court for the implementation of the agreement?

Let’s first look at the relevant legal provisions:

(1) Article 509 of the Civil Code provides: “Parties shall perform their respective obligations in full in accordance with the agreement.” The parties shall act in good faith and, in accordance with the nature, purpose, and trade practices of the contract, perform obligations such as notification, assistance, and confidentiality. “In the course of performing a contract, the parties shall avoid wasting resources, polluting the environment, and damaging the ecosystem.”

(2) Article 1,076 of the Civil Code provides: “Where both spouses voluntarily seek divorce, they shall enter into a written divorce agreement and personally apply for divorce registration at the marriage registration authority.” “The divorce agreement shall set forth the parties’ mutual consent to divorce and their mutually agreed-upon arrangements regarding child custody, property division, debt settlement, and other related matters.”

(3) Article 1087 of the Civil Code stipulates: "At the time of divorce, the common property of the husband and wife shall be dealt with by agreement between the two parties; if the agreement fails, the people's court shall make a judgment according to the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the no-fault party." “The rights and interests enjoyed by either spouse in the household-based land contract management shall be protected in accordance with the law.”

(4) Paragraph 2 of Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the Civil Code of the People's Republic of the People's Republic of China stipulates: "The divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code on the disposal of property and debts is legally binding on both men and women. After the divorce is registered, the people's court shall accept the lawsuit arising from the dispute over the implementation of the above agreement."

when expressing this issue, the first civil court of the supreme people's court held: "this is the obligation that the donor promises to fulfill in exchange for the other party's consent to divorce by agreement. The special feature of this obligation is that the donor's obligation to pay the house is not performed to the opposite party of the divorce agreement, but to the third party outside the contract as agreed. In accordance with the provisions of article 1076 of the Civil Code,....... Since the prerequisite for divorce registration by the marriage registration authority is that both parties agree on the maintenance of children and the division of property, the party eager to divorce may make certain concessions on the division of property in the divorce agreement. The main obligation of both parties in this type of divorce agreement is that the recipient cooperates with the donor to handle the divorce by agreement, and the recipient delivers the house to a third party. In the case where the counterparty has agreed to dissolve the marriage relationship with the donor, the donor shall also perform the obligation to pay the house as agreed. If the donor fails to perform this obligation, it constitutes a breach of contract, and the counterparty to the divorce agreement has the right to request the court to order him to perform the obligation to deliver the house. The provisions of paragraph 2 of Article 69 of the (I) for Interpretation of the Application of the Marriage and Family Part of the the People's Republic of China Civil Code of the Supreme People's Court can be understood as the embodiment of the above spirit. China is moving towards the rule of law, the signing and implementation of divorce agreements should implement the principle of good faith. For those parties who did not intend to implement the agreement when they signed the agreement, especially those who signed a substantial concession on the issue of property division as an expedient measure in exchange for the other party's prompt consent to divorce, but often went back on their word and did not intend to seriously implement the agreement, they must not be supported."

The Intermediate People's Court of Honghe Hani and Yi Autonomous Prefecture in Yunnan Province held in Civil Judgment (2021) No. 1704 of Yun25 Minzhong that: "In this case, both the appellant and the appellee divorce voluntarily and sign a written divorce agreement, which is legally binding on both parties. According to the agreement on real estate in the divorce agreement between the two parties, both parties of the disputed house in this case gave their son Xu mou 2, but now Xu mou 2 has reached the age of 18, and he has clearly stated that he refuses to accept the real estate gift from both parties, so the agreement cannot be fulfilled. the appellee sued to revoke the agreement, which is in line with the law, and it is not improper for the court of first instance to revoke it. The appellant believes that the property of both parties should be redistributed. If the management right of wisteria home textile and 400,000 yuan of inventory have been owned by the appellee, the appellant should no longer pay 230000 yuan's house discount. As the agreement between both parties has been clearly agreed to belong to the appellant and both parties have actually performed according to the agreement, the agreement does not meet the conditions for cancellation, so the appellant's appeal reason cannot be established. The House does not support. After the grant clause is revoked by both parties, the property in dispute is jointly owned by the appellant and the appellee, and may be divided according to the joint property of the husband and wife that has not been divided after the divorce. The appellant and the appellee unanimously agreed that the house involved in the case belonged to the appellant, and the appellee's request to pay half of its price of 23000 yuan according to the confirmed value of the property of 46000 yuan by both parties was supported correctly by the court of first instance, and the court upheld it."

3. What is the difference between a “marital property agreement” and a “divorce agreement”?

The main differences between the two are as follows:

1. The effective conditions of the two are different: once the agreement on the property of husband and wife is signed, it will have legal effect. It does not take divorce as the premise, and it is binding on both parties. Under normal circumstances, it cannot be repented. The divorce agreement is established after it is signed, but it will have legal effect only when the divorce is completed. If the parties have not registered for divorce, the divorce agreement shall not take effect, and neither party shall be bound by it; either party may rescind their consent.

2. The two have different functions in the defense of external debts: if the husband and wife's property agrees that the debt is to be borne by one party, if the creditor knows the agreement of the husband and wife, the other party can defend the creditor's claim for the debt accordingly; the disposition of the husband and wife's joint creditor's rights and debts in the divorce agreement is only binding on both husband and wife, but not binding on the creditor, neither party may use the agreement of the divorce agreement to oppose the creditor's claim.

The People's Court of Haidian District of Beijing held in the civil judgment (2015) No. 1026 of Hai Min Chu Zi: "According to the statement of both parties and the content of the Statement that 'there is no possibility of making amical' caused by the man's infidelity, both parties had confirmed the emotional breakdown of both parties when signing the Statement, and mentioned the divorce matters, it is not simply an agreement on the ownership of marital property. Combined with the objective facts that the two parties began to separate after the signing of the Declaration and the sale of the house on the same day as the signing of the Declaration, the Declaration shall be the property division agreement made by both parties in the case of reaching an agreement on divorce. Therefore, the effect of the Declaration shall be conditional on both parties registering divorce or going to the people's court to agree on divorce. Now Yuan and Zhu Mouhua have not actually gone through the divorce procedures, and the" Declaration "has not taken effect. Therefore, the court does not support Zhu Mouhua's request to divide the common property of both parties with the content of the" Declaration. The two sides dispute the purchase of vehicles after marriage, should be the joint property of Yuan Mou and Zhu Mou Hua's husband and wife. Since the sale of the house is still in the performance stage, the parties may negotiate or separate the division of the proceeds from the sale of the house."

3. On the issue of spousal fidelity agreements.

Article 1,043 of the Civil Code stipulates: “Families shall cultivate sound family traditions, promote family virtues, and attach great importance to the development of family civility.” “Husbands and wives shall be faithful to each other, respect each other, and care for one another; family members shall respect the elderly and love the young, assist one another, and uphold marital and family relationships that are equal, harmonious, and civilized.” This is the foundation of the marital fidelity agreement.

1. Does a marital fidelity agreement have legal validity?

Regarding the issue of whether the signing of the loyalty agreement between husband and wife during the existence of the marriage relationship is valid or not, the Supreme People's Court has made it clear in the book Understanding and Application of the Marriage and Family Code of the the People's Republic of China Civil Code that the signing of the loyalty agreement between husband and wife should be performed voluntarily by the parties concerned based on the principle of good faith. The law does not prohibit signing such agreements between husband and wife, but does not give such agreements enforcement power. Considering the overall social effects, it is advisable for the court to disallow disputes over loyalty agreements between husband and wife. The reasons are as follows:

First, if the court accepts this kind of loyalty agreement dispute, the party who claims to compensate according to the loyalty agreement should not only prove that the content of the agreement is true and there is no fraud or coercion, but also prove that the other party has violated the loyalty agreement, which may lead some people to do whatever it takes to obtain evidence and seriously infringe the legitimate rights and interests of the parties.

Second, one of the consequences of giving the loyalty agreement legal force is to encourage the parties to sign a loyalty agreement that can "tie" the other party before marriage, which will not only increase the cost of marriage, but also deteriorate the marriage relationship based on the emotion and trust of both parties.

Third, the loyalty agreement belongs to the category of emotion and morality in essence. Of course, it is very good for the parties to perform voluntarily. For example, the party who violates the loyalty agreement is willing to leave the house or compensate some money, and pay the economic price for his derailment. However, if one party is unwilling to perform, they should not be compelled to comply with the fidelity agreement.

Beijing No. 3 Intermediate People's Court recorded in (2021) Beijing 03 Civil Judgment No. 8334: "Regarding the legal effect of the marital loyalty agreement, combined with the provisions of the Civil Code and the judicial interpretation, the court of first instance believes that whether the husband and wife are loyal or not belongs to the category of emotional morality, and the loyalty agreement concluded between the husband and wife should be consciously performed by the parties based on the principle of good faith, the law does not prohibit the conclusion of such agreements between husband and wife, but it does not give such agreements enforcement power and cannot be used as a basis for the division of the joint property of the husband and wife or the determination of the custody of the children. When the parties divorce and divide the common property of the husband and wife, they should comprehensively consider their respective contributions in the marriage relationship, the size of their contributions, the degree of fault of the fault party and the negative impact on the breakdown of the marriage, and take care of the non-fault party as appropriate to balance the interests of both parties and establish a correct social value orientation through judicial decisions."

There are also corresponding practices in Ningbo.According to the divorce case of Meishan Court of Beilun District Court (reported by Zhejiang Rule of Law News 2021-10-13), the husband bigamy and gave birth to two children with others. The court decided to compensate 150000 yuan and 50000 yuan for damages in accordance with Article 1088 of the Civil Code. The second instance of Ningbo Intermediate People's Court maintained that the no-fault party could still obtain relief through the principles of divorce damages and property division and care without relying on loyalty agreement.

2. What is the difference between "marital loyalty agreement" and "marital property agreement?

There are different restrictions on the amount of property: the distribution of family property cannot affect the basic life of one party, and the agreed amount of compensation should be in line with the actual situation of the family economy, which is obviously too high for the court to support; the agreement on the property of husband and wife is not restricted by the basic life of one party, but only an agreement on the amount of property of both parties.

The two take effect at different times: in judicial practice, the loyalty agreement is generally supported only when the divorce is decided. If the divorce only requires compensation according to the agreement, the court will not accept it. The marital property agreement is based on the separate system of marital property. The property agreement is valid regardless of divorce.

The two have different effects: the loyalty agreement is essentially an emotional and moral category, and if one party is unwilling to perform, it should not be forced to perform the loyalty agreement; the agreement on the property of husband and wife is legally binding on both parties, and any party who violates the property agreement should bear the corresponding liability for breach of contract.