Insights

Ningbo divorce agreement says "no remarriage" and "no visit", is it valid?

Ningbo Author：LuXu WANG

Many parties in Ningbo took the divorce agreement to ask: it was written in the agreement that "both parties shall not remarry within two years", "remarriage will not give a penny", "give up all rights to the child and will not come to see him in the future". Does this clause count? Does one party violate it or not?

First give a conclusion: in the divorce agreement, such clauses as restricting the other party's remarriage, restricting childbirth, depriving or restricting visitation rights, and restricting the other party's work and residence migration generally involve the freedom of marriage and personal freedom, which are invalid agreements. The court usually will not support anyone who takes it to sue the other party for performance or compensation. However, the invalidity of such clauses does not render the entire divorce agreement null and void—agreements regarding property division, compensation payments, child support, and visitation arrangements remain generally valid as long as they are entered into voluntarily and comply with the law; the amounts that are due must still be paid.

In the following, combined with several real judgments, make it clear that "what can be agreed and what can't be agreed", "why is it invalid", "what to do after it is invalid", "how to write the agreement is safe.

1. The limits of the validity of divorce agreements: what can be agreed upon, and what cannot.

Article 1076 of the Civil Code provides that 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 expression of intent to divorce, as well as their mutually agreed-upon arrangements regarding matters such as child custody, property division, and debt settlement. Article 1077 establishes a thirty-day cooling-off period for divorce, and Article 1078 provides that if the marriage registration authority ascertains that both parties have genuinely consented and have reached a consensus on relevant matters, it shall register the divorce and issue a divorce certificate.

As can be seen, the “statutory contents” of a divorce agreement are primarily concentrated in three areas: first, the expression of intent to divorce voluntarily; second, child custody matters, including custody rights, child support, and visitation; and third, the division of property and liabilities. Among these three areas, it involvesHow should the property be divided, who will give how much money to whom, how much, and when? With respect to the portion designated as , the law grants a broad degree of freedom of contract; however, when it comes to matters involving personal rights and legal status, the law has drawn clear red lines, and such matters cannot be resolved solely through contractual agreements.

In other words, a divorce agreement is a combination of an agreement on personal status and an agreement on property. With respect to property matters, parties may negotiate, make concessions, or impose conditions; however, matters of personal status—such as whether to remarry, whether to have children, and whether to grant visitation rights—are statutory rights and are not subjects that the parties can freely dispose of or waive. To determine whether a particular clause is valid, the first step is to ascertain whether it pertains to “money and property” or to “personal matters and legal status.”

It should also be noted that a divorce agreement is a legal act concerning personal status, and its effectiveness is contingent upon the completion of divorce registration (or the entry into force of a divorce judgment or mediation statement). If both parties sign the agreement but fail to register, and one party subsequently sues for divorce and goes back on its word, the agreement does not take effect, and the court will divide the property separately according to law. Therefore, the notion that “once the agreement is signed, everything will be fine” is not very reliable.

2. Common types of invalid clauses

In practice, the types of clauses that are most likely to lead to pitfalls are the following.

1. Restriction on remarriage: "May not marry another person"

The case in Fuyang, Anhui, is very typical. In 2018, Ma and Yang entered into a divorce agreement. Clause 3 of the agreement stipulates: “Neither party shall remarry within two years; if either party does so within that period, the other party shall be entitled to compensation in the amount of RMB 100,000.” Subsequently, Ma discovered that Yang was pregnant and filed a lawsuit demanding payment of RMB 100,000 as agreed. The court held that the prohibition against interfering with freedom of marriage is a mandatory provision of law. The agreement stipulating “no spouse may be sought within two years” violates this provision and is therefore invalid. Consequently, Ma’s claim for liquidated damages lacks both factual and legal basis, and the court dismissed his lawsuit.

2. Restricting childbirth, "no more children allowed"

The right to procreate is also a personal right and may not be deprived by property agreements. In the case involving Mr. Qi and Ms. Xu of Hangzhou, the parties agreed in Article 2 of the Supplementary Agreement that, during the period when the man is making the compensation payments, the woman shall not remarry or bear children; if she violates this provision, the man shall cease making the payments. The court explicitly determined that this provision, which restricts the woman’s freedom to marry and her right to procreate, violates the law and the public interest, and is therefore an invalid clause. Using "giving money" to exchange for the other party's "not giving birth" is essentially using money to interfere with the person, which the court will not recognize.

3. Deprivation or restriction of visitation rights

Some agreements stipulate that “one party voluntarily waives the right to visitation and shall never exercise it,” or include a provision stating that “visitation is subject to the other party’s consent; otherwise, it shall be deemed as a waiver.” Such clauses are likewise invalid. Visiting rights are statutory and cannot be deprived in advance by agreement, for reasons detailed in Part VI.

4. The portion of the clause “after leaving with nothing, no rights may be asserted” that violates the law In agreement

, the common clause stating that “one party shall leave with nothing and may thereafter assert no rights or make any further claims” should be examined carefully. For property that has been divided, the voluntary waiver of both parties is the right to dispose of their own rights and is generally valid; however, if this sentence is used to deprive legal rights-such as the exclusion of claims for child support, the exclusion of claims for financial assistance in divorce, and the exclusion of claims for concealment or transfer of property-that part is invalid because of the violation of the law. For example, if one party is experiencing financial hardship and genuinely in need, alimony upon divorce is mandated by law (Article 1090) and cannot be nullified by a mere stipulation that “no rights may be asserted.”

5. Restricting one party’s freedom of work, residence, and movement

Article 1057 of the Civil Code provides that both spouses have the freedom to engage in production, work, study, and social activities, and neither spouse may impose restrictions on or interfere with the other. After divorce, the individual's freedom of choice of employment, residence and migration is protected by the Constitution and civil law. Clauses such as "not to leave the city", "not to engage in a profession" and "not to go out to work" are invalid because of restrictions on personal freedom.

6. Compensation is paid on the condition of not remarrying.

This is the category most easily packaged as a "property arrangement. In the case of Liu mou and Li mou tried by Bengbu intermediate people's court, the divorce agreement stipulates that 99% of the shares of the company under the man's name will still belong to the man. "if party a remarries, the shares under party a's name will belong to his son from the date of remarriage, and party a shall transfer the ownership unconditionally". Both the first and second trials held that the agreement took "remarriage" as a condition for the ownership of equity, which had the intention of restricting the man's freedom of marriage, violated the principle of freedom of marriage, and violated public order and good customs, and should be an invalid clause. Accordingly, the plaintiff's request for transfer was rejected. It is evident that even if the terms are framed as “equity vesting” or “property transfer,” they will be deemed invalid as long as the condition is “remarriage.”

3. Why are these clauses invalid?

These provisions have been deemed invalid, primarily for four reasons.

First, the freedom to marry is a fundamental right and shall not be subject to interference by property agreements. Article 1041 of the Civil Code establishes the basic principle of freedom of marriage, Article 1046 stipulates that marriage should be completely voluntary by both men and women, forbid any party to force the other party, forbid any organization or individual to interfere; Article 1042 forbids arranged marriage, buying and selling marriage and other acts that interfere with freedom of marriage, and forbids asking for property through marriage. Using property or penalties for breach of contract to restrict the other party’s right to remarry or dictate when they may remarry constitutes a typical interference with marital freedom.

Secondly, personal freedom and reproductive freedom cannot be prescribed.Article 1057 explicitly stipulates that neither spouse may restrict or interfere with the other’s freedom to engage in production, work, study, and social activities; likewise, rights relating to procreation, residence, and migration are also considered personal rights. These rights are not lost upon marriage, nor can they be “sold off” simply because a divorce agreement has been reached.

Thirdly, personal relationships cannot be arbitrarily created or terminated by contract.Marital relationships, parent–child relationships, and visitation rights are matters of personal status; their creation, modification, and termination are governed by law, and the parties do not have the authority to preclude them through agreement. In a divorce agreement, provisions relating to personal status matters may only be arranged within the limits permitted by law; for example, determining which parent is granted custody and setting visitation schedules. Such provisions must not, however, serve to deprive either party of their statutory rights.

Fourth, civil legal acts that violate mandatory provisions or contravene public order and good morals are void. Article 153 of the Civil Code stipulates that civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid; civil legal acts that violate public order and good customs are invalid. A conditional civil act, if the attached condition is illegal, the act is invalid. The provisions restricting remarriage and restricting childbirth are falling on these two articles. Furthermore, if a particular type of clause is a standard-form clause that is repeatedly used without negotiation with the other party and unreasonably excludes the other party’s principal rights, it may also be deemed invalid or not upheld pursuant to Article 497.

4. Legal consequences of invalid clauses Clause

is invalid; the consequences should be examined at two levels.

First layer: Invalid clauses do not affect the entire agreement.If only part of a civil legal act is invalid without affecting the validity of the remaining parts, the remaining parts shall still be valid. The attitude of the trial practice is clear. The case of Qi and Xu is an example: Article 2 of the Supplementary Agreement stipulates that no remarriage or childbirth is invalid, but Article 1 stipulates that the man shall pay the woman 2 million yuan within five years after marriage, which is a voluntary payment agreement for the division of the joint property of the husband and wife, which is an independent clause and valid, and the court finally ruled that the man shall pay the due 500000 yuan. In other words, the terms that stepped on the red line were removed and the remaining property arrangements were implemented as usual.

Second layer: The portion that has already been performed is generally not subject to restitution due to the invalidity of the clause. If a party has actually paid the money according to a clause that has been determined to be invalid, whether it is required to be returned depends on the nature and basis of the money: if it itself corresponds to legal property division or economic assistance, the paid part is usually not returned; if it is purely the cost of restricting remarriage and childbearing, the court will also treat the request of the payer to claim for return separately, because the basis of the right to return is precisely the conditional agreement that has been found to be invalid. Conversely, the party asserting that “because the other party has remarried, they should be required to pay damages or return funds pursuant to the invalidity clause” typically does not prevail; the Ma case, in which a claim for RMB 100,000 in liquidated damages was dismissed, is a typical example.

5. Marginal cases: the validity of property-related conditional agreements.

In reality, controversies often arise at the intersection of “property requirements” and “status restrictions,” necessitating a distinction between two different approaches.

Direction one: no payment of property on the condition of "remarriage.For example, provisions such as “If either party remarries, the compensation payment shall cease” or “Remarriage shall result in the loss of a particular asset.” Such agreements condition the transfer of property on whether the parties remarry, which in essence uses financial incentives to indirectly restrict marital freedom; courts tend to deem them invalid. The equity clauses in the case of Liu v. Li, as well as Article 2 of the case of Qi v. Xu, both fall under this category and have been deemed invalid.

Direction 2: The payer requires the return of the paid property on the grounds of the other party's remarriage.For example, suppose the money has already been paid in accordance with the agreement, but the paying party later discovers a clause stating “no remarriage” and sues to demand its return or to halt further payments. At this time, the provision is also invalid because of the restriction of freedom of marriage, can not be used as a basis for suspension of payment, recovery. The plaintiff’s claim for compensation in the Ma case was dismissed precisely on this basis.

It must be emphasized that the criterion for judgment is not “whether there are any conditions attached,” but rather “what the conditions are directed toward.” If the attached conditions are not related to identity, marriage, personal freedom, such as "equity transfer when the child reaches the age of eighteen", "compensation is paid in five years", "a certain amount is conditional on the other party's timely delivery of the house", such purely property, performance conditions, usually valid. There is only one red line:Don’t use marital freedom and personal freedom as bargaining chips.。

6. How should we handle agreements that "prohibit visitation" or "waive the right to visit"?

Article 1086 of the Civil Code stipulates that after divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist; the method and time of exercising the right to visit shall be agreed upon by the parties, and the people's court shall decide if the agreement fails; if the visit is not conducive to the physical and mental health of the children, the people's court shall suspend the visit according to law, and resume the reason after the suspension.

It is evident that the right of access arises from the parental authority between parents and children; it is a statutory right and not a bargaining chip that the parties can “preemptively waive” in a divorce agreement. The agreement reads "waiver of visitation rights" and "no visitation", which is not binding on the parties: the direct supporter refuses to cooperate, and the other party may still sue separately for visitation, and the court will protect it in accordance with the law. Judicial practice has consistently emphasized that the best interests of the minor child must be the primary consideration; even if the custodial parent obstructs visitation, the court may nonetheless order a specific visitation schedule and frequency, such as twice per month and extended visits during winter and summer vacations. If visitation is indeed detrimental to the physical and mental well‑being of the child, the suspension of visitation may only be ordered by the People’s Court in accordance with the law, and may not be decided unilaterally by one party pursuant to an agreement.

Therefore, in the part of the agreement concerning the visit, "how to visit" should be written, that is, time, place, way, handover, transportation, instead of "can visit". Writing “give up” not only has no effect; it may even leave the other party with a hidden risk of prolonged disputes.

7. How should a divorce agreement be written to be valid?

To draft a divorce agreement that is both hassle-free and legally sound, you can keep a few key points in mind.

  • Focus only on specific arrangements regarding property, child support, and visitation; do not involve issues of personal freedom.Any clauses stating “remarriage,” “prohibition of marriage,” “prohibition of childbirth,” “prohibition of working outside the home,” or “prohibition of leaving a certain place” must be deleted without exception.
  • Clearly list the assets.List the ownership of real estate, vehicles, deposits, company equity and creditor's rights. If you need to transfer the ownership, specify the transfer time and cooperation obligations. If you need to give money, specify the amount, account, installment node and overdue treatment.
  • The nature of the compensation is clearly stated. In the case of voluntary payment for the division of common property or financial assistance for divorce, the basis and name shall be stated, and shall not be linked to "remarriage" and "no remarriage", so as to avoid being found to have illegal conditions attached.
  • Child support written in full. The ownership of custody, the amount and payment method of maintenance, the sharing of education and medical expenses, and the time and place of visit are more specific and enforceable.
  • Visit and write "way and time", never write "give up". make a clear agreement on holidays, winter and summer vacations, pick-up and drop-off places, leaving operational basis for future implementation.
  • Explicit and executable. Avoid the one-size-fits-all expression that excludes legal rights together, such as "no claim to any rights after leaving the house.

What 8. you encounter this kind of clause

If the agreement has written terms such as restriction of remarriage, restriction of birth, deprivation of visitation rights, etc., it can be handled in this way.

  • contends that the clause is invalid. If the other party sues for compensation or demands performance in accordance with such provisions, it may directly reply that the agreement violates the mandatory provisions of freedom of marriage and personal freedom and public order and good customs, is an invalid clause, and has no basis for performance or compensation.
  • Continue to assert rights with respect to the property portion. An invalid clause does not affect the other parts of the agreement; lawful provisions regarding property division, compensation payments, and child support may still be enforced against the other party.
  • Renegotiate and sign a supplementary agreement. The parties may negotiate separately on the terms of the dispute and re-agree on the property, upbringing and visitation with a clear supplementary agreement, confirmed in writing and held one copy each.
  • Filing a lawsuit to confirm or demand performance. If there is a dispute over the validity of a clause, or the other party refuses to perform the effective part, it may bring a suit in a people's court with jurisdiction to request confirmation of invalidity or order performance.
  • Preserve the evidence. Retain the divorce agreement, any supplementary agreements, bank transfer records, chat logs, and other relevant documents to facilitate the reconstruction of the actual terms and their implementation.

9. Frequently Asked Questions

Question 1: Is a clause in a divorce agreement stating “neither party shall remarry” legally valid? Invalid. Restricting remarriage directly interferes with the freedom of marriage and violates the mandatory provisions of Article 1042 and Article 1046 of the Civil Code. If one party claims based on this, the court will not support it.

Question 2: Is it valid to write, “No compensation will be provided in the event of remarriage”? The tendency is invalid. Linking the payment of property to whether or not to remarry is essentially a restriction of freedom of marriage by economic interests, and the court generally finds that the conditional agreement is invalid; however, other property arrangements in the agreement that do not involve status restrictions may still be valid.

Question 3: The agreement states “waiver of visitation rights.” Can I still visit in the future?Yes. The right of visitation is a legal right, which can not be deprived in advance by agreement. The waiver clause has no binding force on the parties. They can still sue for visitation. The court will deal with it in accordance with the principle of maximizing the interests of minor children.

Question 4: If these clauses are invalid, does that mean the entire divorce agreement is null and void?No. The partial invalidity of a provision shall not affect the validity of the remaining provisions. Agreements regarding property division, child support, and lawful compensation payments generally remain valid and shall be performed as agreed.

Question 5: I’ve already paid the money based on an invalid clause—can I get it back?It depends on the nature of the money. The paid part corresponding to the division of legal property or economic help is generally not returned, and the payment on the condition of "no remarriage" and "no more childbearing" shall be specifically analyzed, and the party claiming the return shall bear the corresponding burden of proof and may not be able to obtain support.

Question 6: Does a divorce agreement have to be notarized to be valid?No need. After the divorce by agreement is registered by the marriage registration authority and the divorce certificate is obtained, the agreement is binding on both parties; notarization is not an effective element, but it can enhance the proof and reduce disputes.

10. Practical Legal Insights

The party concerned asks the validity of the agreement with the words "no remarriage within two years", "no money for remarriage" and "giving up all rights of children". The usual answer is: this kind of clause restricting remarriage, childbirth, visitation, work and residence involves freedom of marriage and personal freedom, which is generally invalid. Whoever takes it to demand performance or claim will not be supported. However, it is important to know that the invalidity of the terms does not mean that the entire agreement is invalidated. Property division, compensation, alimony, visiting methods, etc. are usually still valid as long as they are voluntary and the content is legal, and the money that should be given is still given. The starting point for making a judgment is to determine whether the provision in question pertains to “money and property” or to “personal rights and status.”

From an operational point of view, these red line clauses should be picked out and deleted before signing, instead of filing a lawsuit after divorce. When writing the agreement, the things that both parties really care about fall on the executable content: who owns the property, how much compensation, when to pay, whether the maintenance fee is paid on a monthly or annual basis, and how to hand over the visit on which day. In particular, I would like to remind you that the divorce agreement takes the completion of divorce registration as the prerequisite for its entry into force. If one party goes back on his word and files a lawsuit again, the agreement will not take effect and the property will have to be dealt with separately. So don’t equate “having signed the document” with “having completed the process.”

If the agreement with personal restriction clause has been signed, it is not necessary to overturn the whole agreement. The key point is to separate the valid and invalid parts: the personal restriction part requests to be confirmed invalid, and the property part still performs according to the agreement. If the other party refuses to pay compensation or alimony on the grounds that "you have violated the agreement not to remarry", it can be made clear that this is two different things and cannot be used as a shield for invalid clauses. If the other party refuses to perform the property-related obligations, you may file a lawsuit based on the agreement and, after obtaining a judgment or mediation statement, apply for enforcement. The truly prudent approach is to conduct a thorough review in advance, revising vague, emotionally charged, and punitive language into specific, quantifiable arrangements.

The terms of "no remarriage", "no visitation", "no more children" and "no going out to work" written in the divorce agreement are generally invalid, which restrict personal freedom and freedom of marriage. If they are regarded as property payment conditions, they are also easily recognized as invalid. However, the invalidity applies only to the provisions that fall on the borderline; the lawful arrangements in the agreement regarding property division, compensation, child support, and other matters remain valid.

The suggestion to the parties in Ningbo is very direct: when signing the agreement, spend your energy on "how to write the property clearly, how to arrange the upbringing and visiting", and don't touch the other party's freedom of marriage and personal freedom-such clauses can neither exchange money nor stop people, and it is easy to drag the implementation of the whole agreement into the lawsuit.