The Validity Boundary of Prenuptial Agreement and Loyalty Agreement in Ningbo

A couple about to get married is preparing to sign a prenuptial agreement, specifying the ownership of their respective properties and savings; the bride has also requested an additional clause stating that if the groom cheats, he will forfeit all marital assets. What they are most concerned about is: does this kind of agreement work? The conclusion first says: the premarital property agreement is valid in principle. As long as it is in written form, voluntary by both parties, clear in content and does not violate the mandatory provisions of the law, it is legally binding on both parties. However, the agreement shall not restrict the freedom of divorce and personal rights, and clauses such as "no divorce" and "giving up custody of children" are invalid. Most punitive clauses such as "clean body and leaving home" in loyalty agreement are not endowed by judicial practice, however, it can be used as a reference factor for determining fault and dividing property in divorce. Property arrangements and loyalty obligations should be drafted separately and anticipated independently, so that they can be clearly agreed upon and smoothly implemented.

1. Premarital Property Agreement: Legal Basis and Validity Requirements

Article 1065 of the Civil Code stipulates: Both men and women may agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by themselves, jointly owned or partially owned by themselves or partially jointly owned by themselves; the agreement shall be in written form; if there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply; the agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.

Combined with Article 143 of the Civil Code (Effective Elements of Civil Juristic Acts: The perpetrator has the corresponding capacity for civil conduct, his intention is true, does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs) and Article 153 (Invalid Circumstances), the effective elements of the premarital property agreement can be divided into five points: ① Written form-oral agreement is invalid; ② Both parties voluntarily-signed under fraud or coercion, it can be revoked according to law (but the revocation has a period of exclusion and requires proof);③ The content is clear-the property points to specific (which suite, which account, which company's equity), so as to avoid the general expression of "each property belongs to each other" causing interpretation disputes; ④ Not to dispose of other people's property-to whom the parents' real estate and friends' creditor's rights belong, this part is invalid; ⑤ It does not violate the law and public order and good customs-it is not allowed to evade debts by agreement or harm the interests of creditors, and it is not allowed to restrict the freedom of divorce by "going out of the house on divorce.

The scope of matters that can be agreed upon is quite broad: the ownership of premarital property, the allocation of post-marital income (including wages, business profits, and inheritances or gifts), the assumption of debts (among spouses), and the ownership of property acquired during marriage, among others. A common issue in practice is that agreements often address only premarital assets while remaining silent on postmarital matters—leaving unclear how income earned during the marriage and increases in property value should be handled. As a result, upon divorce, the parties must revert to the statutory rules, thereby diminishing the effectiveness of the prenuptial agreement. It is recommended that a prenuptial agreement comprehensively address three key aspects: a list of premarital assets, rules governing marital property, and provisions on debt liability. For significant assets, supporting documentation of ownership should be included.

2. Loyalty Agreements: Scope of Validity and Judicial Attitude

A fidelity agreement stipulates the duty of marital fidelity. Article 1043 of the Civil Code stipulates that husband and wife shall be faithful to each other, respect each other, and care for each other, but this article is an advocacy clause; 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 stipulates that if a party files a lawsuit only on the basis of Article 1043 of the Civil Code, the people's court will not accept it. This means that a loyalty agreement cannot be independently enforced through a lawsuit; its validity can only be assessed in the context of divorce proceedings or similar scenarios.

The mainstream attitude of judicial practice towards the loyalty agreement can be summarized as follows: firstly, most courts do not directly enforce the punishment clauses of complete deprivation of property right, such as "cheating again and leaving the house" -- the loyalty of husband and wife is moral advocacy, and it is unfair to completely deprive one party of property, which is not in harmony with the property division system of the Civil Code; secondly, the loyalty agreement is not a waste paper: the confirmed fault fact that is self-admitted by litigation, can be used as evidence; agreed reasonable compensation (e. g. a fixed amount of moral comfort, a clear share of property compensation) part of the court will be discretionary support or as a reference in the division. Therefore, provisions such as “how much compensation for adultery” and “by how much less the at-fault party receives in the division of assets” can be drafted—made specific, reasonable, and structured as unconditional compensation clauses—which are far more effective than simply stating “the at-fault party receives nothing.”

also connects two new rules to be (II) in 2025: the first is Article 7, for the purpose of bigamy, cohabiting with others and other purposes of violating the duty of loyalty, the spouse can claim that the common property of husband and wife is given to others (the third party), and the spouse can claim that the gift is invalid and return it-the loyalty agreement cooperates with the use of "recovering the gift", and the chain of safeguarding rights is more complete; the second is Article 5, in the event of divorce, the court decides the attribution and compensation in combination with the age of marriage, fault, contribution and market price-if the promise of "house to the other party" in the agreement has not been transferred, it does not mean that the property right has been transferred. A fidelity agreement can establish the existence of fault and corresponding commitments, but the enforcement of property rights still depends on transfer of ownership, registration, and the statutory rules governing property division.

3. Common misconceptions and boundary distinctions

Misconception 1: “Signing a loyalty agreement will automatically result in the other party receiving nothing upon divorce.”"Correct answer: Courts generally do not, under punitive clauses, directly order the forfeiture of all property; reasonable compensation and fault determination can be implemented, and expectations of “being left with nothing” should be adjusted.

Myth 2: “A prenuptial agreement must be notarized to be valid.”"Correct answer: The agreement becomes effective upon signature by both parties; notarization is not a prerequisite for its effectiveness. Notarization can strengthen the evidentiary force and help prevent disputes over the authenticity of signatures; for transactions involving substantial assets, notarization is still recommended.

Misconception 3: “The agreement can stipulate in advance which parent the child will live with.”"Correct answer: Custody is determined based on the principle of maximizing the best interests of the child at the time of divorce; pre‑arranged agreements are not automatically binding (the court will still review the matter in accordance with the principle of acting in the best interests of the minor child), but they may be considered as a reference to the parties’ intentions.

Myth 4: “We agreed that each party would be responsible for their own debts, so the creditor can’t come after me.”"Correct answer: The debt-related provisions in a property agreement are binding only on the spouses themselves and do not bind bona fide creditors. Creditors may still assert their claims against both spouses under the rules governing joint debts, while any internal recourse between the spouses shall be determined separately.

Misconception 5: “The agreement stipulates that the property belongs to me, so I can rest easy.”"Correct answer: For matters involving real estate and other items requiring registration, failure to complete the transfer of ownership may be subject to the provisions in Articles 5 and 8 of (II); the undelivered portion of a gift may be revoked, so property rights should be promptly "settled."

4. Draft an operations checklist

1. Draft separately: Sign the prenuptial agreement and the fidelity agreement separately—use the former to arrange property matters, and the latter to establish fidelity obligations and preserve evidence of misconduct; combining them may lead to the entire document being challenged.
2. The property agreement shall specify: the date and place of execution, the identities of both parties, a list of assets (with supporting ownership documents), the rules for asset allocation (separate ownership/common ownership/ownership in shares), the rules governing liabilities, the conditions for amendment and termination, and the effective-date clause.
3. The loyalty agreement shall specify: a list of wrongful conduct (such as adultery, cohabitation, domestic violence, etc.); a clause confirming the facts; the amount or share of compensation (which shall be specific, reasonable, and unconditional); as well as the signatures, fingerprints, and date.
4. Remove invalid statements: Do not include clauses such as “divorce is prohibited,” “remarriage is prohibited,” or “waiver of custody and visitation rights.”
5. Notarization of important assets and high-value compensation agreements, including provisions regarding the time frame for property transfer and liquidated damages in case of breach.
6. Each party shall retain the original document, and the signing process may be recorded or witnessed by a third party to prevent future denials.

What needs to be added is that the "enforceability" of the agreed content depends on the property itself: the agreement of cash and deposit is the easiest to execute; the real estate should handle the transfer registration and consider the taxes and fees; the equity category should comply with the restrictions of the Company Law on the preemptive right of other shareholders and the articles of association. It may be difficult to actually transfer the ownership simply by writing "the equity of a company belongs to the woman" without going through the internal procedures; the debt-sharing clause, on the other hand, should set aside a statement that "the external cannot be opposed to creditors" to avoid the misconception that the signing of the agreement will cut off external recourse. When signing the agreement, include these “implementation costs” as well—only by putting everything in writing can you prevent it from becoming a mere empty promise.

What needs to be added is that the "enforceability" of the agreed content depends on the property itself: cash and deposit agreements are the easiest to implement; real estate needs to handle transfer registration and consider taxes and fees; equity needs to comply with the "Company Law" about the preemptive right of other shareholders and the company's articles of association, simply writing "a company's equity belongs to the woman" without going through internal procedures, it may be difficult to actually transfer; the debt-sharing clause, on the other hand, should set aside a statement that "the external cannot be opposed to creditors" to avoid the misconception that the signing of the agreement will cut off external recourse. When signing the agreement, include these “implementation costs” as well—only by putting everything in writing can you prevent it from becoming a mere empty promise.

5. Post-marriage retroactive signing and dynamic updates: Don't let the agreement "expire."

Many people assume that signing a prenuptial agreement is a one-time, permanent solution, but in reality, as your financial situation evolves, the agreement needs to be updated accordingly:

First, there is a change in the post-marriage income structure. If the prenuptial agreement only stipulates that "the premarital property shall be owned by each other" but does not stipulate the post-marital income, the post-marital salary, operating income and investment income shall still be treated as the legal common property. With the increase of one party's income, entrepreneurship and inheritance, the blank area of the original agreement is getting larger and larger. It is suggested to sign a supplementary agreement after marriage according to the situation to make up the "post-marital property rules" post-marital property rules "(if the marital income rules, or agree on joint ownership but specify that significant property dispositions are subject to consensus).

Secondly, post-marital fidelity agreements also require regulation. Loyalty agreement is not limited to pre-marriage. The validity rules of the undertaking and guarantee (including "compensation for repeat offenses ×× yuan") signed after the fault is found in marriage are consistent with those before marriage-the fact is valid, reasonable compensation can be claimed, and punitive clauses are difficult to implement. The main point of the re-signing is to specify the specific fault facts (time object) to avoid empty talk of "I will not commit a crime in the future.

Third, the synchronized arrangement of property increases and decreases. When the purchase of a house after marriage, a change in equity, or a large gift occurs, the property not covered by the original agreement is dealt with according to statutory rules, which may overturn the previous overall arrangement between the two parties-for example, the agreement stipulates that the property is owned by each party, but the joint capital purchase of the house after marriage is registered in the name of both parties, and the fact that the new house is shared will change the split expectation. It is recommended to review the agreement annually or following any significant changes in assets. Any necessary modifications should be documented in a written supplementary agreement, which must also comply with the required formalities, be entered into voluntarily, and clearly set forth the terms; where appropriate, the agreement should be re-notarized.

Fourth, the coordination among agreements, wills, and insurance. A prenuptial agreement addresses only the rights and obligations between spouses; to protect one’s children or parents, it must be supplemented by arrangements such as a will and insurance beneficiaries. High-net-worth families can create a comprehensive plan that combines a property agreement, a will, insurance, and a trust, thereby avoiding the limitations of relying on a single document. A prenuptial agreement is the “constitution” of marital property, but even a constitution must be revised to reflect the times—regular reviews ensure that the terms remain aligned with current realities.

6. Frequently Asked Questions

Are prenuptial agreements and fidelity agreements the same thing?

No. A prenuptial agreement, pursuant to Article 1065 of the Civil Code, governs the allocation of property and has stable legal effect, being directly enforceable; a fidelity agreement, governed by Article 1043, addresses issues of marital fidelity, with most of its provisions amounting to moral obligations and thus having limited legal force. The two were drafted separately and are expected to be implemented independently.

Is the “leaving with nothing” clause actually effective?

Clauses providing for the complete deprivation of property—effectively resulting in “leaving with nothing”—are generally not deemed enforceable; however, findings of fault may be admitted as evidence, and agreements for equitable compensation may receive discretionary support or serve as a reference in the division of assets. Changing “leaving with nothing” to “the at-fault party voluntarily compensates ×× yuan or receives a reduced share of ××%” significantly increases the likelihood of it being implemented.

We signed a prenuptial agreement but didn’t have it notarized. What should I do if my spouse goes back on it during the divorce?

The agreement becomes effective upon signature by both parties; whether or not it is notarized does not affect its validity. If the other party reneges, you may file a lawsuit based on the agreement to request division as agreed, and the court will generally support such claims. However, in cases involving real estate that has not been transferred, the provisions of Interpretation (II) shall apply; it is advisable to register significant assets promptly.

Can an agreement stipulate post-divorce living expenses and liquidated damages?

Provisions regarding financial assistance upon divorce, compensation, or liquidated damages may be agreed upon (note that such provisions must not restrict the freedom to divorce). The terms should specify the amount, duration, and method of payment; any portion that is clearly unfair or excessively high may be adjusted by the court.

After marriage, a house is purchased with jointly contributed funds and registered in both spouses’ names. Does a prenuptial agreement stipulating “each party’s property shall belong to that party” still hold any legal effect?

See the agreed scope. If the prenuptial agreement clearly stipulates that the income after marriage (including the capital contribution for house purchase) belongs to each other, and it can be proved that the house purchase money comes from their premarital property or is shared according to the agreement, the house can be treated according to the agreement; if the house purchase money comes from the joint income after marriage and is registered as common, even if there is a general agreement of "respective ownership", it is difficult to resist the common fact formed by joint contribution after marriage-when the general clause and the conflict with specific behavior, the court will make a comprehensive judgment in the context of the agreement, the source of the contribution and the registration. If the marital property arrangement changes after marriage, it is far more efficient to promptly execute a supplemental agreement to update the terms than to later dispute whether the original agreement still applies.

7. Practical Insights from a Lawyer

A prenuptial agreement and a fidelity agreement are documents of different natures, with distinct legal scopes; therefore, they must be drafted separately, with their respective intended effects clearly defined. As long as a prenuptial agreement is entered into voluntarily by both parties, its terms do not violate the law, it is in writing, and its scope is clearly defined, it will generally be recognized. With regard to fidelity agreements, the key lies in whether the terms impose “constraints on personal status” or merely constitute “property arrangements”: the former are difficult to enforce, whereas the latter become more enforceable only when they pertain to specific assets. Mixing two types of documents into a single package and expecting them to take effect simultaneously often results in neither achieving its intended purpose.

In drafting the agreement, first compile a detailed list of the assets to be managed, specifying the ownership of each item individually and avoiding vague generalizations such as “each party’s property shall belong to that party.”Involving dynamic changes after marriage, such as operating income, stock, real estate appreciation, to anticipate clearly and state the way to deal. The signature should be marked and the original should be retained, preferably reflecting the willingness of both parties and their knowledge of the consequences. If the loyalty clause is written, the consequences must be reduced to a clear property arrangement, not an emotional punishment slogan, which determines whether it can be truly implemented in the future.

When things change after marriage, don't let the agreement "expire". After changes in income structure, asset form and family members, the original agreement may no longer match and should be updated with a supplementary agreement in a timely manner to avoid the embarrassment of "obviously unfair handling of new situations according to the old agreement. When there is a dispute, one party often turns over old scores with obvious unfairness or coercion, so every signature must be voluntary, clear and marked. This is not only a guarantee of effectiveness, but also a confidence at the negotiating table. The more standardized the black and white, the more it can withstand scrutiny.

The boundary between prenuptial agreement and loyalty agreement can be summarized as follows: property arrangement depends on article 1065 of the civil code, which is valid when signed and transferred when landed; Loyalty restraint depends on self-consciousness and fault evidence. Don't expect a piece of paper to make people "clean out of the house", but writing clear facts and reasonable compensation can make the wrong party pay the due price. It is suggested to draft the four-piece set of "property list + post-marriage rules + debt rules + fault compensation", delete the expression of personal restrictions, notarize important documents, and involve the timely transfer of real estate. The meaning of the agreement is not calculation, but to allow both parties to operate the marriage within the framework of clear rights and obligations-this is why it is respected by law.