The effect of loyalty agreement between husband and wife

1、 Reality

In the reception and consultation, we often encounter the problem of the couple's loyalty agreement, which is written by the parties concerned. The language used is colloquial and the content is mostly not rigorous and varied. The general content is: the couple are loyal to each other. If any one of them is found to have extramarital affairs or other infidelity, the couple's common property will belong to one party, or the fault party will compensate the other party for a certain amount of money, etc 。 For the effectiveness of this agreement, we can never give the parties a clear and definite answer. Whether it is effective or invalid, and how to deal with it in judicial practice, so generally speaking, we only talk about the personal views of lawyers.

Nowadays, marital fault behaviors such as extramarital affairs are not accidental. In divorce cases, extramarital affairs fault is the most common one. However, the marriage law only stipulates that damages can be claimed for serious extramarital affairs, that is, bigamy, cohabitation of spouse and other people, and the amount of compensation determined in judicial practice is generally low. Therefore, the parties themselves sign loyalty agreement to deal with such problems. Of course, most of the parties do not have such a clear legal awareness, but more because of the actual needs, such as one party has a fault behavior, or the couple or one party is remarried. In order to prevent marriage risks, show the loyalty of both parties, sign similar agreements.

The most famous case about the loyalty agreement between husband and wife is a case of Minhang District People's Court of Shanghai.

For the sake of prudence, the plaintiff (man) and the defendant (woman) signed a loyalty agreement, which stipulated the loyalty obligation of the couple after marriage. It also stipulates "liability for breach of contract": if one party betrays the other party's immoral behavior (extramarital affair) due to moral quality problems during the marriage, it shall compensate the other party for the reputation loss and mental loss of 300000 yuan. After that, the woman discovered the man's extramarital behavior. In May 2002, the man sued the court for divorce. In the lawsuit, the woman asked the court to order the plaintiff to pay 300000 yuan as liquidated damages for the man's violation of the "loyalty agreement between husband and wife". After trial, the court decided that the plaintiff should pay 300000 yuan to the defendant according to the loyalty agreement reached by both parties. After the plaintiff appealed, in the second instance, through the mediation of the judge, the appellant and the appellee reached a mediation agreement, and the man paid 250000 yuan to the woman.

In fact, the judgment recognized the effect of the loyalty agreement between husband and wife. As soon as this case was issued, it immediately caused a great uproar in the field of legal theory, which led to a debate on the validity of the loyalty agreement. Therefore, Shanghai Higher People's Court issued the "selected questions and answers for civil law application of the first civil court of Shanghai Higher People's Court (II)", and answered the following questions on the loyalty agreement:

The duty of loyalty stipulated in Article 4 of the marriage law is a kind of moral obligation, not a legal obligation. An agreement concluded by a husband and wife in exchange for the moral obligation as consideration with the other party cannot be understood as an agreement to determine specific civil rights and obligations. Therefore, it has been made clear through discussion by the trial committee of the Supreme Court that (1) the interpretation of the Supreme People's Court on Several Issues concerning the application of the marriage law of the people's Republic of China (1) shall be strictly implemented, and the people's court shall not accept the lawsuit if the parties only file on the basis of Article 4 of the marriage law; if the lawsuit has been accepted, the people's court shall rule to reject the lawsuit. (2) The people's court shall not accept a lawsuit filed by one party against the other party for performance of the agreement or payment of liquidated damages and compensation for losses only on the ground that the other party violates the loyalty agreement. (3) In addition to the circumstances stipulated in Article 46 of the marriage law, if one of the husband and wife demands the other party to pay liquidated damages or damages for breach of the loyalty agreement or breach of the loyalty obligation in the divorce case, the people's court hearing the case shall not handle the application. (4) The relevant cases that have been concluded before and have legal effect will not be adjusted.

This answer from Shanghai high court actually denies the validity of the loyalty agreement.

Another case is a case of Fangshan District People's Court of Beijing

In January 2004, a man and a woman in Fangshan District of Beijing married. Because the man had divorced twice, the woman was the first marriage, so the two sides signed a marriage loyalty agreement conveniently: if any one of them had an affair after marriage, the common property of the married couple would be owned by the other party. In early 2006, the man and a woman lived together for nearly a year. In March 2007, the woman filed a lawsuit for divorce with the Fangshan District People's court, demanding that the couple's common property be owned by themselves after marriage. During the trial, the man agreed to divorce, but did not agree to fulfill the content of the marriage loyalty agreement. In April 2007, the people's Court of Fangshan District decided that the two sides should divorce, and the common property of the married couple should be owned by the wife.

Because in the past experience, the court is more inclined to not adopt this loyalty agreement, so this kind of judgment supporting the loyalty agreement of husband and wife will naturally cause widespread concern in the legal community.

Due to the lack of clear legal provisions on the validity of the loyalty agreement between husband and wife, the court can not rely on it when adjudicating the case. The guiding opinions of Shanghai high court only play a guiding role in Shanghai. Therefore, it is necessary to formulate the corresponding judicial interpretation of the marriage law to clearly identify the problem.

2、Two opinions

Because the law does not define the validity of the loyalty agreement between husband and wife, there are always two opinions in the legal field:

（1）Theory of validity

The main reasons for the validity of the loyalty agreement are as follows:

1. Article 4 of the marriage law stipulates that husband and wife shall be faithful to each other and respect each other. Therefore, the "couple loyalty agreement" is the embodiment of the abstract couple loyalty obligation in the marriage law, which fully conforms to the principles and spirit of the marriage law, so the agreement should be recognized as effective.

2. The "loyalty agreement" does not violate the prohibitive provisions of the law. Article 55 of the general principles of civil law stipulates that a civil legal act shall meet the following conditions:

（1）The actor has the corresponding civil capacity;

（2）The expression of intention is true;

（3）Do not violate the law or the public interest.

Therefore, as long as the above conditions are met, a civil agreement should be recognized as valid.

3. Marriage law stipulates that husband and wife can agree on the ownership of property by themselves, and the agreement made by both parties on property disposal is also valid.

4. According to the marriage law, if the divorce is caused by the fault of bigamy or the illegal cohabitation of the spouse with other people, the innocent party has the right to claim damages. The couple's loyalty agreement only expands the scope of such compensation or makes clear the amount of damages.

（2）On invalidity

However, those who advocate the invalidity of the couple's loyalty agreement believe that:

1. The content of the loyalty agreement violates the law.

The emotion of citizens is uncontrollable, and sexual behavior is also a part of personal freedom. Therefore, according to the constitution of China, "the personal freedom of citizens of the people's Republic of China is inviolable", it is believed that the loyalty agreement between husband and wife limits the emotional and sexual freedom of people, which is an infringement of personal freedom, and its content is illegal.

2. Husband and wife's mutual loyalty belongs to the category of moral adjustment, and the law should not intervene

The most common reason for the invalidity of the loyalty agreement between husband and wife is that the duty of loyalty between husband and wife is the scope of moral adjustment, not the scope of legal adjustment. The scope of law and moral adjustment is obviously different and plays a different role. Morality should be advocated. It is a higher requirement for people's own thoughts and behaviors. It depends on conscious compliance, not on coercion. When moral problems arise, it is through self-cultivation, public opinion pressure and other methods to promote the improvement of actors. But the law is different, the law must abide by, is the minimum standard of people's behavior, not only to advocate, is mandatory, that is, once the perpetrator has an illegal act, he must bear the corresponding legal responsibility. Therefore, some people think that "husband and wife should be faithful to each other" stipulated in Article 4 of the marriage law means to advocate and encourage, which still belongs to the field of moral adjustment. Only "must" is the legal obligation. Therefore, in addition to the cases of asking for damages clearly stipulated in the marriage law, such as bigamy and cohabitation of the spouse with others, the content of "compensation for infidelity" should not be recognized as effective, otherwise, the law would infringe on people's private life too much and adjust the fields that should be adjusted by morality.

3. The essence of compensation in the loyalty agreement of husband and wife is not the agreement of marriage property, but a kind of compensation for damage, which can only be clearly stipulated by law, but not agreed.

In view of the view that the agreement is essentially a kind of agreement on marital property in the theory of validity of the "couple loyalty agreement", it is proposed that the compensation in the "couple loyalty agreement" is not a kind of property agreement in essence, but a kind of damage compensation. Compensation for damage is mainly a form of compensatory liability, so compensation for damage is usually combined with the actual damage. How to calculate the so-called actual damage caused by violating the couple's duty of loyalty? Therefore, it is believed that it is obvious that damages cannot be set up in advance in an agreed way.

4. At the same time, some people think that the couple's loyalty agreement can't be adjusted by the contract law, because the contract law clearly stipulates that "the agreement of marriage, adoption, guardianship and other relevant status relations is subject to the provisions of other laws", so "the couple's loyalty agreement" is not a contract, but a common civil agreement, therefore, the so-called "unfaithful compensation" can't be applied to the contract either The same law, such compensation has no legal basis.

3、A theoretical analysis on the validity of husband wife loyalty agreement

（1）The author agrees with the first opinion that the loyalty agreement between husband and wife should be effective in theory.

For the reasons of the invalidity of loyalty agreement, the author thinks that:

1. The content of the loyalty agreement between husband and wife does not violate the law

Sexual freedom is indeed a kind of basic freedom. However, there is no absolute freedom in the world, and freedom is also limited in some cases, such as the restriction of the law. The law clearly stipulates that it is not allowed to engage in any act. If a citizen engages in any act, it is an illegal act. Although the loyalty agreement of husband and wife is not a law, as long as it is signed voluntarily by both parties, it is also the true meaning of both parties. Its content also conforms to the loyalty obligation of husband and wife stipulated in the marriage law. Just as other agreements and contracts are signed, the signer should also abide by them. That is to say, as long as both parties sign a loyalty agreement voluntarily, it means that both parties agree to limit their sexual freedom. In this regard, the law does not need to prohibit the agreement voluntarily reached by both parties. Therefore, the reason that the couple's loyalty agreement violates the law is untenable.

2. Loyalty between husband and wife really belongs to the category of moral adjustment, but once the two sides sign the loyalty agreement between husband and wife, moral obligation is transformed into legal obligation

The marriage law stipulates that husband and wife should be faithful to each other and respect each other, which really belongs to the category of moral adjustment. The above provisions of the marriage law are just a kind of advocacy. However, if the two parties sign a separate loyalty agreement, it means that the two parties voluntarily raise this kind of moral obligation to legal obligation, that is, if one party violates the agreement and there are marital faults such as extramarital affairs, the corresponding compensation obligation should be performed. Of course, this legal obligation is not to force one party to be faithful to the other party, but when one party has marital faults, the law should The validity of the relevant compensation clauses in the agreement shall be recognized and guaranteed by legal force.

3. On the nature of loyalty agreement between husband and wife

The author believes that the nature of the loyalty agreement is neither the agreement of husband and wife's property nor the compensation for damages, although such agreement often plays the role of reallocation of husband and wife's property and punishment of one party's marriage fault in fact. Husband and wife loyalty agreement is only an independent and effective civil agreement, which is signed voluntarily by both husband and wife. Similar to other civil agreements, such as adoption agreement, it is a civil agreement that makes an agreement on the rights and obligations of both parties, and has binding force on both parties. It is not regulated by contract law, but by marriage law and general principles of civil law.

（2）However, not all the loyalty agreements between husband and wife are effective. The author believes that in practice, they should be identified separately:

1. The couple's loyalty agreement signed under duress is invalid

Some husband and wife loyalty agreements do not violate the content of the legal prohibitions, and the two sides also sign in person, and there is no problem in the form. However, they are not signed on a voluntary basis, but under the coercion of one party. Such an agreement should be void. Because China's general principles of civil law clearly stipulates that a party's civil legal act against the true meaning of the other party is invalid by means of fraud, coercion or taking advantage of the danger of others.

Of course, the coercion here should refer to the more serious situation, such as the situation of forcing the other party to sign a loyalty agreement by threatening to cause damage to the life, health, reputation, property and other aspects of the other party or its close relatives. But the general threat, such as the threat of divorce without signing an agreement, should not be regarded as a kind of coercion. In this case, the signed loyalty agreement should be effective.

2. Invalid or partially invalid couple loyalty agreement with illegal content

Some loyalty agreements not only stipulate the loyalty obligation of husband and wife, but also stipulate the "punishment" for violating the obligation. For example, if one party has an infidelity, it will divorce unconditionally and never see the child again. These contents are obviously invalid because they violate the prohibitive provisions of the law.

3. In the case of unfair loyalty agreement between husband and wife, the judge should decide it is invalid or adjust it properly according to his discretion

There are also some loyalty agreements between husband and wife. Although there are no problems in content and form, if they are implemented according to the agreement, it will be obviously unfair or cause great difficulties to one party. According to the general principles of civil law, civil activities should follow the principles of voluntariness, fairness, compensation for equal value, honesty and credibility. Therefore, if the content of the agreement is indeed unfair, the relevant provisions should also be invalid, and the judge should make appropriate adjustment according to the principle of fairness. For example, for some couples, the common property of both parties is only worth several hundred thousand yuan. However, in the loyalty agreement, it is agreed that if there is an extramarital affair, the fault party will give the other party millions of yuan. Obviously, the two parties lack seriousness when signing this agreement, which may be just a temporary act of righteousness. At this time, if the judge judges decide that one party will pay the other up to millions of yuan in compensation according to the loyalty agreement Compensation is obviously unfair to one party. Therefore, this kind of high compensation judge can adjust according to the principle of fairness and its discretion. However, the agreement that the fault party needs to pay compensation to the other party is still considered to be effective, only according to the situation of the case, the amount of compensation has been properly reduced.

4、Legislative proposals

（一）Limited recognition couple loyalty agreement

Although theoretically, the loyalty agreement between husband and wife should be effective, in view of China's current national conditions, it is obviously not appropriate to determine the validity of the loyalty agreement between husband and wife on a large scale. Because many people are not very clear about the legal consequences of the agreement when they sign it. They only use it as a means to alleviate the conflict between husband and wife, and there is no intention of strictly abiding by it. Therefore, if the simple stipulation of the couple loyalty agreement is effective, it will inevitably produce a lot of social problems. The first is that there will be many more lawsuits; the second is that the loyalty agreement between husband and wife will not play a positive role in stabilizing the relationship between husband and wife. If it is stipulated in this way, it may form a phenomenon of rushing to sign the loyalty agreement between husband and wife, which is equal to encouraging such behavior, so we must be careful; the third is that even if the court determines the validity of the loyalty agreement between husband and wife, because One party does not really want to abide by the agreement when signing it, so it will inevitably produce the problem of difficult implementation when implementing the agreement, resulting in new contradictions between the two parties and increasing social disharmony.

Therefore, the author believes that in the current situation, we can consider legislation to restrict the form of husband and wife loyalty agreement, and recognize the validity of husband and wife loyalty agreement. For example, it is stipulated that the husband and wife loyalty agreement notarized by the notary organ and signed voluntarily, which does not violate the prohibitive provisions of laws and regulations, can be recognized as effective and protected by law. In this way, when the husband and wife sign this kind of agreement, it is very formal. It needs to be notarized by the notary office. The notary office also needs to review the agreement to some extent, such as whether there is obvious violation of the law. When the parties sign this agreement, they will be very clear about the corresponding legal consequences, so they will also seriously consider the content of the agreement, so that the above can be reduced The author thinks that it is a more realistic way to solve the negative problems.

(二) the performance of the loyalty agreement between husband and wife

Once a couple's loyalty agreement is effective, whether or not it requires notarization, there will be a problem, that is, whether or not the performance of the couple's loyalty agreement must be filed in divorce proceedings. If the couple is not divorced, one party will file a separate lawsuit on the performance of the loyalty agreement during the marriage, such as asking the other party to pay compensation, whether or not the court Acceptance. There are two ways to deal with this:

1. Take divorce as a condition and file in divorce proceedings

In practice, it is better to operate such a provision. However, if the husband and wife are unwilling to divorce and one party only requests the other party to pay compensation, and the law stipulates that divorce must be the condition, there will be two negative effects. One is that one party does not want to divorce, so they have to give up claiming compensation, which is equivalent to limiting the legitimate rights of one party; the other is that such a provision may It will cause one party to initiate divorce, and lead some marriages with room for recovery to break up.

2. It is not conditional on divorce, but can be sued separately during the marriage.

In theory, if the law clearly stipulates that the loyalty agreement between husband and wife is effective, during the existence of marriage, one party shall file a lawsuit on the performance of the loyalty agreement alone, and the court shall accept it. But this will also produce a problem, that is, the nature of the compensation that one party gives to the other party. Is it the husband and wife's common property or personal property, and should one party pay such compensation with personal property or husband and wife's common property? Since the common property system of husband and wife is implemented in our country, it will cause the above problems to require one party to pay compensation during the period of marriage, which will cause confusion of husband and wife property. For example, the law stipulates that the compensation paid by the fault party to the other party is one Party's personal property, and the fault party should pay compensation to the fault free party with its own personal property, if the fault party has no individual What about property? Isn't this kind of compensation empty? Therefore, some people believe that our country does not have the corresponding legal basis to allow such a lawsuit to be filed independently during the existence of the marriage relationship.

However, if it is agreed in the agreement that the compensation should be paid by the joint property of husband and wife, there will be no problem, and most of the original intention of signing this loyalty compensation clause is to pay compensation by the joint property of husband and wife. Obviously, the nature of compensation can no longer be defined as the joint property of husband and wife, otherwise the loyalty agreement of husband and wife will lose its full significance. Moreover, the marriage law also clearly stipulates the protection of one party's personal property. Therefore, it is more in line with the spirit of the marriage law to allow one party to file a lawsuit for compensation during the marriage. The above problems can also be solved through specific provisions, such as:

(1) If the nature of the amount of compensation paid and the source of compensation are agreed in the loyalty agreement of the husband and wife, it shall be handled according to the agreement.

(2) If there is no agreement or the agreement is not clear, the compensation paid by the fault party to the fault free party according to the loyalty agreement of husband and wife is the personal property of the fault party. If the fault party has personal property, the compensation shall be paid with the personal property in priority. If there is no personal property or the personal property is not enough to pay the compensation, the compensation shall be paid with the joint property of husband and wife.

From the perspective of case execution, the first one is easier to operate. In China, where the husband and wife share the property system, there are many legal problems if they want to apply the second one. Therefore, at present, under the condition that the husband and wife loyalty agreement is effective, the first scheme is adopted, that is to say, the compensation obligation required to fulfill the husband and wife loyalty agreement should be based on divorce, which is more in line with China's national conditions and legal status.