Insights

Ningbo husband and wife loyalty agreement validity court how to determine

Ningbo Author：LuXu WANG

After one spouse cheated on the other spouse, the other spouse often required to sign a "loyalty agreement", which agreed to leave the house clean or pay high compensation if he committed another offense. However, courts do not take a uniform stance on fidelity agreements in divorce proceedings. First, the conclusion is that the contents of the loyalty agreement between husband and wife concerning the identity relationship (restriction of freedom of divorce, restriction of remarriage and childbirth, and agreement on custody) are usually invalid. Agreements involving property relations vary from place to place. Zhejiang and Ningbo courts generally do not accept lawsuits based on loyalty agreements alone or only use them as discretionary references. It is inappropriate to regard loyalty agreements as "insurance policies" for property division ". The relief measures that can truly be implemented are the compensation for domestic contributions under Article 1088 of the Civil Code, the damages for divorce under Article 1091, and the preferential treatment afforded to the faultless party during property division.

1. legal basis and positioning: the duty of loyalty is an advocacy norm

Article 1043 of the the People's Republic of China Civil Code stipulates: "Families should establish good family traditions, promote family virtues and attach importance to the construction of family civilization; husband and wife should be faithful to each other, respect each other and care for each other. "This article establishes the duty of loyalty between husband and wife, but its nature is an advocacy and guiding norm and does not create independent civil liability for breach of the duty of loyalty. Article 4 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code further clarifies: "If the parties only file a lawsuit on the basis of Article 1043 of the Civil Code, the people's court will not accept it; If it has been accepted, it will rule to reject the lawsuit. "In other words, if one spouse sues solely on the ground of the other party’s infidelity, the court will not even accept the case." Article 1091 of the Civil Code limits the wrongful acts that can claim damages to five categories: bigamy; cohabitation with others; domestic violence; maltreatment and abandonment of family members; and other major faults. Whether, in the general sense, “infidelity” or “extramarital affair” constitutes “other significant misconduct” is determined on a case-by-case basis by the court—long-term, stable cohabitation typically does, while sporadic infidelity is more contentious.

Three Types of Treatment of the Effectiveness of 2. Loyalty Agreement

Take the content of the loyalty agreement apart and see that the effectiveness is in three states:

  1. The terms of identity relationship are invalid: it is agreed that the terms with the content of restricting personal rights, such as "whoever asks for divorce will leave the house clean", "no remarriage", "giving up custody of children", etc., are invalid because of violating public order and good customs and infringing on the freedom of marriage, and the court will not support them.
  2. The validity of the property payment clause is doubtful: if the derailed party is agreed to pay high compensation and "leave the house clean", the judges will be divided in different places. In the spirit of relevant cases and minutes, the Supreme People's Court tends to believe that the loyalty agreement should be performed consciously by the parties and the court should not intervene-if the "loyalty agreement" is sued separately for performance, most courts will not accept or deal with it; Even if it is accepted, it will also examine whether the amount of compensation is too high and unfair, and rarely support it in full. Courts in Beijing and other places have cases that determine the validity of such property agreements, but they can be adjusted according to the principle of fairness; courts in Shanghai, Zhejiang, Jiangsu and other places mostly hold the attitude of not accepting or not dealing with them.
  3. The marital property agreement shall be defined separately: if the two parties sign the Marital Property Agreement, which directly stipulates the ownership of specific property such as real estate and deposit (for example, "a real estate belongs to the woman personally"), the agreement does not rely on the condition of "loyalty" and belongs to the marital property agreement according to Article 1065 of the Civil Code. As long as it is written and true, it is effective and much more reliable than the loyalty agreement. Writing "compensation for derailment" as "conditional disposition of property" is a more stable design in practice, but it must be avoided to restrict the freedom of divorce as a condition.

3. the true path of relief associated with loyalty agreements

If the loyalty agreement is unreliable, it does not mean that the innocent party has no way to go. There are three statutory remedies: First, compensation for divorce damages. According to Article 1091 of the Civil Code, if one party has bigamy, cohabitation with others, domestic violence, abuse and abandonment or other major faults, the innocent party has the right to claim for damages. The amount of compensation is determined by the court in combination with the degree of fault, consequences and economic status of both parties, according to Article 1087 of the Civil Code, the division of common property shall be carried out according to the principle of taking care of the rights and interests of children, women and the innocent party, and the innocent party may claim more points. Third, compensation for housework. According to Article 1088 of the Civil Code, if one of the spouses bears more obligations for raising children, caring for the elderly and assisting the other in their work, the divorce has nothing to do with fault or whether there is a loyalty agreement. All three paths are more certain and enforceable than loyalty agreements with questionable validity.

Fixing 4. Evidence: The Premise of Asserting Fault

Regardless of which avenue of redress is pursued, evidence of fault is a prerequisite. Evidence that can be accepted in practice includes: chat records that can reflect long-term and stable relationships, transfer and room opening records, photos and videos of common residence, letters of guarantee/repentance (written materials of the other party's self-admission are more powerful), alarm records and public security punishment documents (involving domestic violence), effective documents of bigamy or cohabitation determined by the court, etc. Three points should be paid attention to when fixing evidence: keep the original carrier (mobile phone and computer original) instead of just screenshots, back it up and notarize it as much as possible before deleting it; Evidence collection shall not infringe upon the legitimate rights and interests of others or violate the prohibitive provisions of the law, and evidence obtained by invading other people's houses and installing eavesdropping equipment may be excluded; Self-confessed materials such as guarantees shall state specific facts (when, with whom, the general "I was wrong" has limited proof. The Ningbo court is more cautious about the adoption of electronic evidence, according to the Yinzhou Court's "White Paper on Marriage and Family Cases Trial (2019-2021)", WeChat and other electronic evidence has many defects in evidence, difficult to be accepted, and the fixed quality directly affects the effect of the claim.

5. common mistakes

  • Misunderstanding 1: The loyalty agreement must be valid once it is signed. Positive solution: The validity of loyalty agreement is controversial, and the determination of the courts varies from place to place. The terms involving identity relationship are usually invalid, and the property terms may not be supported, which cannot ensure the fulfillment.
  • Misunderstanding 2: Loyalty agreement can make the other party clean out of the house.Correct answer: Even if the agreement contains such a provision, the court may still adjust it or refuse to uphold it on the grounds of obvious unfairness or violation of public order and good morals; in judicial practice, “leaving with nothing” is rarely fully enforced.
  • Misunderstanding 3: As long as the other party is derailed, he can compensate according to the agreement. Positive solution: Most district courts will not accept the claim for compensation based on the loyalty agreement alone; even if it is accepted, general derailment may not constitute the "major fault" of Article 1091, and compensation should be returned to the legal framework.
  • Misunderstanding 4: If you don't sign a loyalty agreement, you can't defend your rights. Positive solution: The party without fault can claim compensation for divorce damage, compensation for housework, and ask the court to take care of itself when the property is divided. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases in the court involve property division, and property division care is a practical way to safeguard rights in reality.
  • Misunderstanding 5: Signing a loyalty agreement is equivalent to signing a marital property agreement. Positive solution: the two are different in nature. A fidelity agreement makes the allocation of marital property conditional upon “fidelity or infidelity”; the former’s validity is uncertain, whereas the latter, pursuant to Article 1065 of the Civil Code, is generally valid. To ensure that property arrangements are effectively implemented, it is advisable to enter into the latter type of agreement.

Design points of 6. marital property agreement: more reliable than loyalty agreement

Instead of pinning your hopes on a loyalty agreement, it is better to place the property arrangement into a marital property agreement. Six key points should be grasped in the design: first, it is more stable to directly agree on the ownership of the property instead of attaching the condition of "derailment"-"the property a belongs to the woman personally" than "if the man derails, the property belongs to the woman", which may be recognized as a conditional gift conditional on loyalty, with doubtful validity; Second, list the property list-the real estate is clearly located and the certificate number, and the deposit account and deadline, the name and share of the company should be clearly written, and the general "property under each name belongs to each other" is difficult to apply to mixed property. Third, the synchronous agreement on debt handling-stating the rules and notification obligations of marital debts, involving the evaluation of external debts and the knowledge of creditors; Fourth, notarization and registration-notarization of agreements enhances the probative force, timely registration of changes involving real estate, and prevents arbitrary cancellation from being inconsistent with the registered appearance; Fifth, timing of signing-sign while the relationship is still stable and the meaning is true, so as to avoid signing in a state of fierce conflict or coercion, otherwise it may be requested to be revoked on the grounds of coercion and obvious unfairness; Sixth, dynamic update-timely supplement of the agreement after the property structure changes (house purchase, entrepreneurship, inheritance) to prevent the old agreement from covering the new property. It should be reminded that marital property agreements and loyalty agreements can coexist-property ownership is locked by agreement, fault compensation is placed in the legal framework (damages, divided care), and the two-track parallel is much more reliable than a single-pledge loyalty agreement.

7. Frequently Asked Questions

The loyalty agreement wrote "If you cheat again, you will compensate 1 million". Does the court support it?

the courts of zhejiang and ningbo generally refuse to accept or deal with those who sue by loyalty agreement alone; even if they accept, they usually adjust on the grounds that the agreement is too high and obviously unfair, so it is difficult to get full support. A more stable arrangement would be to write property ownership directly into the marital property agreement.

To what extent can I claim damages for divorce if I derail?

The legal situations in Article 1091 of the Civil Code are bigamy, cohabitation with others, domestic violence, abuse and abandonment, etc. Whether the general occasional derailment constitutes "other major faults" is determined by the court case. Long-term stable cohabitation usually constitutes, and the continuity and stability of the relationship need to be proved by evidence.

Can a letter of guarantee (letter of repentance) be used as evidence?

Yes, and it carries relatively strong probative force. The guarantee stating the specific facts and time of derailment belongs to the other party's self-admission. However, attention should be paid to whether the writing was coerced, and those who were coerced may request cancellation. The other party often uses this defense when involved in the lawsuit. Voluntary supporting evidence (e.g. no alarm record and no evidence of presence threat) should be retained in the writing process as far as possible.

wants to sign an agreement after finding out that he has cheated. What is more effective than a loyalty agreement?

the marital property agreement (directly agree on the ownership of specific property such as real estate and deposit) + fixed fault evidence. The former is valid in accordance with Article 1065 of the Civil Code, while the latter is used to claim damages and division of care.

The guarantee document specifies a particular amount of compensation—can I directly enforce it based on the guarantee?

The main value of the letter of guarantee (letter of repentance) is to prove the facts of the fault; the nature of the compensation promise is close to the terms of the loyalty agreement, and the validity is doubtful. The court is mostly used as a reference for discretionary damages rather than a direct enforcement basis. The claim that compensation should still return to the framework of Article 1091 of the Civil Code, prove the fault with the guarantee and prove the amount of compensation with the consequences of the damage.

How to deal with the other party's refusal to divorce and transfer property?

is divided into two steps: first, the fixed transfer evidence (running water, time line, related parties), according to article 1092 of the civil code, advocate less division or no division in divorce division, and if necessary, request division within marriage and apply for property preservation according to article 1066; Second, if the other party has legal faults such as bigamy and cohabitation, he shall claim damages together during divorce, and the fault and property shall be claimed separately and not replaced by each other.

8. Practical Insights from a Lawyer

It is the most common misjudgment to treat the loyalty agreement as an insurance policy for leaving the house clean. In practice, the correct way to open the agreement is to first break it down one by one: those involving such identity contents as restricting divorce, restricting remarriage and childbearing, and giving up custody in advance are usually not supported; If only property ownership or compensation is involved and the amount is not outrageous, it may be treated as a property agreement in some cases. Judging whether an agreement can be used depends not on whether its title is called loyalty agreement, but on what each agreement has agreed on and whether it touches the bottom line of personal rights and laws. If you can't clear the terms, talking about effectiveness is empty talk.

If the goal is to make the other party really pay the price when they default, instead of fighting with the loyalty agreement afterwards, it is better to transform the agreement into a marital property agreement with clear legal channels, and write down the ownership and adjustment of real estate, deposit and equity, and fix it in written form. At the same time, it should be understood that litigation based solely on the duty of loyalty is often even problematic, and the duty of loyalty is more advocacy. The relief that can really land is several parallel ways: one party has assumed more family obligations can claim economic compensation, there is a legal fault can claim damages in divorce, the division of common property to take care of the no-fault party. It is more real to use strength on these channels than to knock a piece of paper.

No matter which way you take, it is impossible to claim that the other party is at fault without evidence. In daily life, consciously preserve materials that can prove the facts of the wrongdoing and its ongoing nature, such as records of long-term, stable interactions, as well as police reports and medical records related to domestic violence. Ensure that the methods of evidence collection are lawful and that the sources of the evidence can be clearly explained. It is also necessary to straighten out the expectation of derailment: whether an accidental derailment in the general sense constitutes a major fault that can be claimed for compensation, the determination of individual cases varies greatly, and situations such as long-term stable cohabitation are relatively easier to be recognized. The expectation should be adjusted to a reasonable range in advance, so that the negotiation and litigation will not be led by emotions.

The loyalty agreement carries too much "emotional value", but it can't provide too much "legal protection". The rational posture of safeguarding rights is to put the evidence in the first place (guarantee, chat record and alarm record), to implement the property arrangement as a marital property agreement instead of a loyalty agreement, and to put the compensation claim back into the legal track of articles 1091, 1087 and 1088 of the Civil Code. For the wrong party, it is better to make rational arrangements in the marital property agreement than to sign a sky-high compensation on the loyalty agreement and then go back on it.For the innocent party, instead of clinging to the imagination of "leaving the house clean", it is better to make every piece of evidence and every property arrangement real-that is the "loyalty" that the court will really support ".

Clarifying the functions of loyalty agreement, marital property agreement and fault evidence is the winner of this kind of cases: loyalty agreement is used to fix "who promised what", marital property agreement is used to lock "who owns the property", and fault evidence is used to support "damage compensation and divided care". The three can coexist, but do not substitute for each other-especially not to write property attribution into a clause conditional on derailment, which is tantamount to tying an effective property arrangement to a condition of doubtful validity. Before signing any agreement, ask yourself "how much can this document be honored if you divorce tomorrow" and the answer will be calmer than you think.