The First Civil Division of the Supreme People's Court made it clear: Prosecution based on the "loyalty agreement" of the husband and wife will not be accepted!

Source: Civil and Commercial Law Litigation Practice

Foreword: In practice, it is common for husband and wife to sign a fidelity agreement during the existence of the marital relationship, such as the agreement between the husband and wife: "Both parties shall respect and love each other, and have a sense of morality and responsibility for the family, spouse and children." If one party betrays the other party due to moral character problems during the marriage and commits immoral acts (extramarital affairs), the other party shall be compensated for the loss of reputation and mental damage of 1 million yuan. "After the signing of the loyalty agreement, if one party discovers that the other party has committed infidelity, can it file a lawsuit with the people's court on the grounds that the other party has violated the requirements of the loyalty agreement, and request that the other party be ordered to pay 1 million yuan for the loss of reputation and mental damage?

Latest regulations:

Civil Code of the People's Republic of China

Article 1043: [Advocacy Provisions on Marriage and Family]Families shall establish a good family style, carry forward family virtues, and attach importance to the establishment of family civilization.

Husbands and wives should be faithful to each other, respect each other, and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious, and civilized marriage and family relations.

Understanding applies

On the issue of whether the signing of a fidelity agreement between a husband and wife during the existence of a marital relationship is valid, the Supreme People's Court made it clear in the book Understanding and Application of the Marriage and Family Inheritance Section of the Civil Code of the People's Republic of China that the signing of a loyalty agreement between husband and wife should be consciously and voluntarily performed by the parties in accordance with the principle of good faith, and the law does not prohibit the signing of such agreements between husband and wife, but it does not give such agreements enforceability. Here's why:

First, if the court accepts such a loyalty agreement dispute, the party claiming compensation according to the loyalty agreement must not only prove that the content of the agreement is true and that there is no fraud or coercion, but also prove that the other party has violated the loyalty agreement, which may lead to the arrest of adulterers for the sake of evidence, the tapping of telephones and private opening of letters for the purpose of obtaining evidence, and even the more egregious infringement of personal privacy, and the emotional entanglement between husband and wife may evolve into a criminal case, and its negative effects cannot be underestimated.

Second, one of the consequences of giving legal force to loyalty agreements is to encourage the parties to sign a loyalty agreement that can "tie" each other before marriage, which will not only increase the cost of marriage, but also deteriorate the marital relationship based on the affection and trust of both parties.

Third, the loyalty agreement essentially belongs to the emotional and moral category, and it is of course excellent for the parties to consciously and voluntarily perform it, such as the party who violates the loyalty agreement is willing to leave the house or compensate a certain amount of money, and pay the economic price for his infidelity. However, if a party is unwilling to perform, it should not be forced to perform the loyalty agreement.

Attached: Typical cases:

Top 10 Typical Cases of Marriage and Family in Jiangsu Courts in 2019

——Divorce dispute between Li and Ma

Basic facts of the case: Li (male) and Ma (female) registered their marriage in 2012 and had a daughter. After marriage, Li had an improper relationship with Luo of the opposite sex, which led to Luo's two pregnancies. In January 2017, Li and Ma signed a marital agreement, stipulating that in the future, both parties would be loyal to each other, and if the divorce was caused by one party's fault (extramarital affair, etc.), the daughter would be raised by the innocent party, and the at-fault party would give up all the property in the name of the husband and wife, and compensate the innocent party with RMB 200,000. After the agreement was signed, Li still maintained a relationship with Luo, who gave birth to a son in July 2017. Mr. Li sued the court for divorce, and Mr. Ma agreed to the divorce and advocated that child support and the division of the joint property of the husband and wife should be handled in accordance with the marital agreement.

The court ruled: After trial, the court of first instance held that the relationship between Li and Ma had indeed broken down and the divorce should be granted. In the above-mentioned agreement, the agreement on the custody of children should be invalid because it involves a relationship of status, and the agreement on the division of property and economic compensation is a loyalty agreement, which does not belong to the circumstances of the marital property agreement as provided for in Article 19 of the Marriage Law, and there is no legal basis for Ma's claim that child support and property division should be handled in accordance with the marital agreement, but considering factors such as Li's obvious fault in the marriage, the innocent Ma should be taken care of as appropriate. Comprehensively considering the child's upbringing, the income level of both parties, the source of family property, etc., it was decided that the daughter should live with Ma, and Ma should share 70% of the joint property of the husband and wife. After the first-instance judgment, Li and Ma both appealed. The court of second instance rejected the appeal and upheld the original judgment.

Gist of the adjudication: The fidelity agreement entered into between husband and wife should be consciously performed by the parties, and the law does not give it enforceable force, and cannot be used as a basis for dividing the joint property of the husband and wife or determining the ownership of child custody

Further reading:

1. Q&A on the Application of Civil Law of Shanghai Senior People's Law, No. 1, 2003

Question: If there is a violation of the agreement that one party shall be faithful to the other party and shall not have extramarital affairs, and if there is a violation, is the agreement that the violating party shall pay liquidated damages or compensate for losses, is it actionable, and should the court support the party's claim?

Answer: The duty of loyalty stipulated in Article 4 of the Marriage Law is a moral obligation, not a legal obligation, and the agreement entered into by one spouse in exchange with the other party for this moral obligation cannot be understood as an agreement to determine specific civil rights and obligations<中华人民共和国婚姻法>Interpretation (1) of Several Issues stipulates that if a party initiates a lawsuit on the basis of Article 4 of the Marriage Law, the people's court shall not accept it, and if it has already accepted it, it shall rule to dismiss the lawsuit. (2) Where a husband and wife have signed a loyalty agreement, and now one party sues the other party to perform the agreement or pay liquidated damages and compensate for losses solely on the grounds that the other party has violated the loyalty agreement, the people's court will not accept it. (3) Except as provided for in Article 46 of the Marriage Law, if one of the spouses demands the other party to pay liquidated damages or damages on the grounds that the other party has violated the loyalty agreement or the duty of loyalty in a divorce case, the people's court hearing the case shall not handle the appeal. (4) Relevant cases that have been previously concluded and have taken legal effect will not be adjusted.

2. Jiangsu Provincial High People's Court, Guidelines for the Trial of Family Dispute Cases (Marriage and Family) (2019)

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Fourth, the issue of divorce property

24. Where the husband and wife enter into a loyalty agreement stipulating that if one of the husband and wife violates the duty of loyalty, they will compensate the other spouse for liquidated damages or solatium for moral damages, and one of the husband and wife sues to confirm the validity of the loyalty agreement or claims that the other spouse is liable on the ground that the other spouse has violated the loyalty agreement, how should it be handled?

A marital fidelity agreement is an agreement between the husband and wife before and after marriage to ensure that both parties do not violate the duty of fidelity during the marriage relationship and agree in writing on the liability for liquidated damages or compensation.

Whether a husband and wife are faithful or not belongs to the realm of emotion and morality, and the loyalty agreement entered into by the husband and wife should be consciously performed. Where one of the husband and wife files a lawsuit claiming confirmation of the validity of the loyalty agreement, or asserts that the other spouse is responsible for violating the loyalty agreement, a ruling is made that it is not accepted, and where it has already been accepted, a ruling is made to reject the lawsuit.

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