Is Ningbo Loyalty Agreement Effective

Many people have signed this kind of loyalty agreement, and many people count on it. But when it came to divorce, the clean-out clause may not work, and the court's attitude was more cautious than expected.

What is a 1. loyalty agreement?

A loyalty agreement is generally an agreement between a husband and wife to be faithful to each other and to bear the consequences of property (e. g., leaving the house clean and paying compensation) if one of the parties is derailed. It is sandwiched between property arrangements and emotional constraints, and legal evaluation needs to be taken apart.

The property part is separated from the identity part.

The property arrangement of "compensation if derailed" in the agreement is different from the identity constraint of "no derailment, no divorce. The courts usually review only the property component and tend to deny provisions restricting personal freedom.

2. the effect of the clean-out clause.

Provisions that deprive a party of all property by "leaving the house clean", with penalties and compulsory status, are often found to be invalid because they restrict the freedom of marriage or are obviously unfair. A simple property compensation agreement is more likely to be respected.

1. It cannot be agreed that "no divorce"

freedom of marriage is a fundamental principle, and agreements cannot limit the right of a party to file for divorce. If you tie "cheating on you and leaving your home clean" and "no divorce" together, the compulsory part of your identity will be stripped off and the remaining property part will be evaluated separately.

2. Invalidity does not mean that all provisions are invalid.

The court adopted a divisibility review of the agreement: only that part of the punitive clause was invalid, and the agreement on the ownership of a property and the independent property agreement on the ownership of a deposit could continue to apply. So even if the main clause is denied, don't give up your claim to the rest of the agreement, itemize and state its independence, and often preserve a significant portion of the interest.

The Moral Attribute of 3. Loyalty Duty

article 1043 of the Civil Code advocates fidelity between husband and wife, but fidelity is primarily in the moral sphere. Only the other party's breach of the duty of loyalty to sue for the performance of the loyalty agreement, the court usually does not accept or reject, need to fall to the specific property damage.

Compensation to fall to provable damage

if the derailment causes provable property damage (e. g. unauthorized gift to a third party), the return or compensation may be claimed in another case.

4. a more secure way of writing

instead of writing "clean out of the house", it is better to explicitly agree on the attribution of specific property within marriage, or to set up compensation for unauthorized disposal of common property. The conversion of status penalties into specific property arrangements makes the agreement more enforceable.

Rewrite the punishment into an enforceable compensation.

At the time of drafting, it was suggested that the first layer should clearly identify the conditions, such as living with others for more than 3 months and having written or video evidence; The second layer sets the consequences, such as 20% less in the division of common property, or a one-time compensation of 50000 yuan. Conditions can be verified, the consequences are capped, and the probability of being supported by the court is significantly increased.

5. are also loyalty agreements, why are some valid and some invalid?

The watershed is whether the provisions deal with property or identity. The court generally respects the change in the attribution of a specific property under certain conditions, which falls within the scope of the marital property agreement, and the court generally respects it, while the agreement to leave the house, not to file for divorce, and to pay a high amount of liquidated damages for divorce involves restrictions on the freedom of marriage and the basic right to survival, which are usually found to be invalid. If two types of provisions coexist in the same agreement, the court will review them separately and partially effective.

Another judgment point that is often overlooked is proportion. Even property clauses may be adjusted for manifest unfairness if the actual effect is equivalent to depriving a party of all or substantially all of its property. In practice, the more easily supported writing is to set a ceiling of compensation, such as the agreement that the party in violation of the duty of loyalty in the division of property less 10% to 30%, or a one-time payment of 30000 yuan to 100000 yuan compensation, than a one-size-fits-all clean-out much safer.

6. case proof

in practice, the couple signed a loyalty agreement and agreed to leave the house in case of derailment. The punitive clause in divorce proceedings was found invalid due to excessive restriction of freedom of marriage and deprivation of all property rights and interests of one party. The court still divided the common property according to law. In the end, the innocent party divided about 10% more under the principle of care. In addition, the other 20000 yuan was awarded damages for the fault, which was far from the whole claim of leaving the house.

In practice, both parties agreed in writing that the pre-marital property under one party's name should be jointly owned after marriage, and attached a faithful condition that they should not live with others. After that, the party violated the agreement. The court determined that this was a valid husband and wife property agreement rather than an identity punishment. According to the agreement, it was confirmed that the house was shared by both parties and was executed by 50% to 50% when it was divided, which was in sharp contrast with the clean out of the house type clause.

7. Risk Alert

• punitive clauses such as "cleaning up and leaving the house" are easily found to be invalid.
• The non-divorce is written into the agreement, and the mandatory part of the identity is invalid.
• Only rely on the moral loyalty clause to sue, the court does not accept.
• The agreement is obviously unfair and one party may claim to revoke it.
• Confused gift and third party return and loyalty agreement compensation.

8. FAQ

is the loyalty agreement effective?

Punitive and liberal clean-out clauses are often found to be invalid; specific property compensation agreements are more likely to be respected.

If you cheat, will the court force you to leave the house?

It won't. Loyalty is primarily in the realm of morality, and the courts directly confiscate all property for failure to comply with loyalty agreements.

Is it useful to write that the agreement cannot be divorced?

It's no use. The freedom of marriage is a principle, and the provisions restricting divorce are invalid.

How to write more stable?

The conversion of identity penalties into specific property agreements, such as compensation for the attribution of specific property and unauthorized disposition, is more enforceable.

How much is it easier to support a loyalty agreement to agree on damages for breach of contract?

It is more secure to set an upper limit of compensation. In practice, a one-time compensation of 30000 yuan to 100000 yuan, or 10% to 30% less in the division of property, is more likely to be supported. If the agreed amount far exceeds the size of the family property, or is directly equivalent to the total wealth, it is easy to be found invalid because of the obvious injustice.

If the agreement is invalid, will the derailed party not bear the consequences at all?

It's not. The invalidity of the terms of the agreement does not affect legal relief: the no-fault party can claim compensation for divorce damages, and the amount of similar cases is mostly in the range of 5000 yuan to 50000 yuan; The court will also apply the principle of taking care of the no-fault party when dividing the property, with the common tilt range of about 10%.

Practical Experience of 9. Lawyers

many people have signed it and many people count on it, but when it comes to divorce, this kind of clause may not work, and the attitude of the court is more cautious than expected. The key is to split an agreement into two layers: one is property arrangements, such as compensation from the derailment party, and the other is identity constraints, such as no derailment or divorce. Usually only the property part will be reviewed, and if the clean body leaves the house with the color of deprivation of all property and excessive punishment, it is likely to be denied or significantly adjusted.

Instead of betting on the clean body and leaving the house, it is better to replace it with a more likely to be recognized writing method: write down the compensation in case of fault-amount, payment time, payment method, and attach clear trigger conditions; Involving real estate, equity, directly write down the specific property how to dispose of, rather than generally say all belong to the other party. At the same time do not write restrictions on the freedom of divorce, restrictions on the content of the person, so that the agreement to stay at the property level, the legitimacy of the guarantee. In this way, even if the other party questions the effectiveness afterwards, your claim has a clear landing point, so that the whole agreement will not be overturned together.

The party advocating this agreement should bear the burden of proof. The fact of fault is often supported by chat, video, transfer and relevant people present. The agreement alone has no evidence of fault and the terms are difficult to fall to the ground. In practice, a more stable approach is to combine the compensation arrangement in the loyalty agreement with the division of property in the divorce agreement, so that the agreement and the actual disposition are in line, which is easier to achieve and more acceptable to the other party and the referee than to claim a piece of loyalty agreement alone. Agreement and evidence walk on two legs, the lack of which one, the terms may be reduced to empty words.