Legal Effect of Marital Loyalty Agreement
When people are single, they have great expectations of their marriage life.
When people are married, they found that it was their unreal expectations of what marriage would be like.
Some people are afraid their spouse will betray their marriage, or the wife wants to save their marriage and forgive the errant husband. The Husband and wife reach a marital loyalty agreement in order to sustain the marriage in which the Husband agrees to surrender his right to certain community property and promises to indemnify the wife if he commits adultery or errant again.
Can the wife sue the husband for compensation during their marriage? Pursuant to article 1043 of the Chinese Civil code, families shall establish good family values, promote family virtues, and enhance family civility. Husband and wife shall be loyal to each other, respect each other, and care for each other. Family members shall respect the elderly, take care of the young, help each other, and maintain a marital and familial relationship of equality, harmony, and civility. But one party can’t be sued under this provision. It must be sued along with other claims, such as divorce.
If filed for divorce, can the Wife get what had been mentioned in the marital loyalty agreement? Will the court grant the compulsory execution of the marital loyalty agreement?
If the husband and wife want to sign a loyalty agreement, the agreement should be voluntarily performed by the parties in line with the principle of good faith. The law does not prohibit the signing of such agreements between husband and wife, but it does not give such agreements compulsory execution. If the court accepts this kind of loyalty agreement dispute, the party who advocates compensation according to the loyalty agreement must not only prove that the content of the agreement is true and 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 rape for the purpose of proof, eavesdropping on the phone to obtain evidence, privately opening letters and even worse violations of personal privacy. The emotional entanglement between husband and wife may turn into a criminal case, and its negative effects cannot be underestimated.
Therefore, considering the overall social effect, the court should not accept the dispute of loyalty agreement between husband and wife. In addition, one of the consequences of giving the loyalty agreement legal force 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 marriage relationship based on the feelings and trust of both parties. Judging from the fact that the law does not protect the engagement, if both parties agree that once engaged, they must get married, otherwise, the defaulting party will have to pay some liquidated damages, and so on, the court will generally not support such a claim. By the same token, the loyalty agreement belongs to the emotional and moral category in essence, and it is of course excellent for the parties to voluntarily perform it. For example, one party who violates the loyalty agreement is willing to go out of the house clean or compensate some money to pay the economic price for his derailment. However, if one party is unwilling to perform, it should not be forced to perform the loyalty agreement, just like the creditor's rights and debts that have exceeded the limitation of action, whether or not to perform depends entirely on the debtor's willingness.