Author: fourling
Lawyer Jia Mingjun from Marriage Lawyers Network.
70% of divorce cases represented by Marriage Lawyers Network involve extramarital affairs. Obviously, one party's failure to perform the duty of loyalty between husband and wife is the main reason for the disintegration of modern marriage. In order to avoid the occurrence or recurrence of extramarital affairs, the "guarantee" and "loyalty agreement" issued by one spouse are common in divorce proceedings. From a practical point of view, how to treat and master this problem has become a direct problem faced by marriage lawyers.
Case: Zhang Lan (pseudonym) and Chen Hai (pseudonym) fell in love freely, and then registered to get married in a community in Shanghai in May 2002. After marriage, Zhang Lan discovered that Chen Hai was having an affair with a woman and had sex. Zhang Lan was in great pain and wanted to divorce Chen Hai. Chen Hai knelt down for mercy and expressed his willingness to repent. Under the mediation of both parents, Chen Hai issued a letter of guarantee, which reads as follows:
guarantee
I (Chen Hai) did something wrong to my wife Zhang Lan, and I regret it very much. I am determined to turn over a new leaf. I will never do anything wrong to Zhang Lan again, and I will never beat and scold my wife and listen to her. Otherwise, I will give up all my property.
Guarantor: Chen Hai
Date, year and month
A few months after the agreement was signed, Zhang Lan found that Chen Hai still had no contact with the woman. Although she went home for the night, she always used the excuse of going out early and coming back late. Once, when I was climbing a mountain, I didn't know what to do, but I didn't know what to do.
So, is the marriage loyalty agreement signed between Zhang Lan and Chen Hai valid?
First of all, legal theorists' views on loyalty agreement.
For loyalty agreement, there are two concepts in the legal theory circle at present:
First, this agreement should not be protected by law for the following reasons:
First, the implementation and sanctions of such agreements are family issues, not legal issues, and the court is not suitable for dealing with such complex and sensitive family issues. Therefore, no matter from the purpose or content of the agreement, both parties have no intention to establish a legal relationship. This is an agreement that implicitly excludes the jurisdiction of the court, so it is not protected by the court's coercive force.
Second, the obligation of mutual loyalty between husband and wife stipulated in Article 4 of the Marriage Law is only a declaration and a legal value orientation. Combined with the Supreme Court's interpretation of several issues in the Marriage Law (1) Article 3, the law does not stipulate that husband and wife are faithful to each other as an obligation. Because marital adultery or "extramarital affairs" with others is only a moral issue, although the law does not encourage it, it should not be restricted, and the parties cannot restrict it through contracts. The reason is that the rights related to personal freedom cannot be restricted by contract, even if it is immoral.
Third, the infringement damage cannot be determined in advance through the contract. The reason is that the Tort Liability Law implements the principle of damages. If the parties are allowed to agree on this kind of infringement damage in advance, it will violate the principle of compensation for damage and will also cause the rich to arbitrarily infringe on the rights of others.
Fourth, personal privacy and personality rights should be higher than the "loyalty principle". If the court gives the Loyalty Agreement legal effect, one party or the people's court has the obligation to prove and verify in order to find that one party has "breached the contract". In this process, it is bound to expose the privacy of the other party and even the innocent third party to the public.
Fifth, another consequence of giving the "loyalty agreement" legal effect is to encourage both parties to enter into such an agreement before marriage, so as to "bind" each other. On the one hand, this will inevitably increase the cost of marriage, on the other hand, it will worsen the marriage relationship based on pure love and mutual trust, and marriage will inevitably become a bargaining for similar businessmen.
The second view is that the agreement should be protected by law for the following reasons:
First, the marriage law allows both husband and wife to agree on the way to dispose of property and enjoy the right to dispose of it. At the same time, the new marriage law also stipulates that if a divorce is caused by bigamy or illegal cohabitation between a spouse and others, the innocent party has the right to claim damages. In addition, mutual loyalty between husband and wife is the most essential requirement of marriage, and the stability of marriage depends on it to a great extent. The "faithful agreement" of compensation for breach of contract is actually the embodiment of the abstract obligation of husband and wife loyalty in marriage law, which is completely in line with the principle and spirit of marriage law, so it should and can be supported by law.
Second, as long as a "marriage agreement" is made, the content of the voluntary agreement between the two parties to the marriage does not violate the prohibitive provisions of the law, nor does it harm the interests of others and the public. The agreed compensation amount is feasible. At the same time, the two sides reflected their true wishes in the agreement, which was signed on the premise of equality and voluntariness, so the law should recognize it and the judge should adopt it.
Two, the opinions of the trial practice on the loyalty agreement.
The court's view on the loyalty agreement begins with a case of Minhang District People's Court in Shanghai published in People's Court Newspaper in 2003 1 month.
The plaintiff Ceng Ming met Jia Yuhong (both pseudonyms), and Jia Yuhong was divorced. After a short contact, the two sides registered to get married a few months later. As both of them have remarried, in order to be prudent, in June 2000, the couple signed a "loyalty agreement" after "friendly negotiation". The agreement stipulates that husband and wife should respect and care for each other after marriage, and have a sense of morality and responsibility for family, spouse and children. The agreement also emphasizes the "liability for breach of contract": one party betrays the other party's immoral behavior (extramarital affairs) due to moral quality problems during the wedding, and compensates the other party for the loss of reputation and mental damage of 300,000 yuan. After the agreement was signed, during the marriage, Jia Yuhong discovered that Zeng Ming had proper relationship with other members of the opposite sex. In May 2002, Ceng Ming filed a divorce lawsuit with the court. At the same time, Jia Yuhong filed a counterclaim on the grounds that Ceng Ming violated the Marriage Loyalty Agreement, and asked the court to order Ceng Ming to pay 300,000 yuan as liquidated damages. After trial, the court ruled that Ceng Ming should pay the other party "liquidated damages" of 300,000 yuan according to the loyalty agreement reached by both parties.
The reason of Minhang District Court in Shanghai is that the faithful duty of husband and wife is the most essential requirement of marriage relationship, and the stability of marriage relationship depends on it to a great extent. Therefore, Article 4 of the newly revised Marriage Law stipulates that "husband and wife should be faithful to each other", and Article 46 stipulates that if divorce is caused by bigamy or cohabitation with others, "the innocent party has the right to claim damages". Although the law does not stipulate which party violates the "loyalty" obligation of husband and wife, and the circumstances have not reached the serious degree of "bigamy" or "illegal cohabitation", the law does not expressly prohibit the parties from making their own agreements. Jia Yuhong and Ceng Ming agreed on a "loyalty agreement" with a penalty of 300,000 yuan, which is actually the embodiment of the abstract loyalty responsibility of husband and wife in the Marriage Law and "completely conforms to the principles and spirit of the Marriage Law". It is this specific agreement that makes the principled "loyalty" obligation of husband and wife in marriage law operational. Therefore, the presiding judge concluded that since the agreement did not violate the prohibitive provisions of the law, it was voluntarily signed by both parties on an equal footing without any coercion, and the contents of the agreement did not harm the interests of others, it was of course effective and should be protected by law.
After the publication of this case in Minhang District, Shanghai, it caused an uproar in the national legal theory circle, and the voices of support and opposition were endless. Although Ceng Ming, the defendant in this case, refused to accept the first-instance appeal to the Shanghai No.2 Intermediate People's Court, during the appeal, the appellant and the defendant reached a mediation agreement, and Ceng Ming paid Jia Hongyu 250,000 yuan to shake hands. Therefore, the validity of the loyalty agreement in this case has not been recognized or denied by a higher court in Shanghai, which makes the court system's view on the validity of the loyalty agreement vague. But from the lawyer's point of view, since the court, especially the Shanghai court system, has supported the loyalty agreement, in the absence of contrary cases, our lawyers still suggest that the injured party who signed the loyalty agreement hold the loyalty agreement to claim rights, because generally speaking, since the Shanghai court has supported the loyalty agreement, it is difficult for the Shanghai court to support the subsequent cases. Under the nature of the same case, if the court in a region makes two completely different judgments on the same fact, according to the logical theory of "the same", one is true, one is false, one is wrong and the other is right, which will make the court system in trouble and lead to the consequences of retrial according to the trial procedure. Therefore, in the absence of explicit provisions in the law, even if there is a great dispute about the judgment in the theoretical circle, it is relatively unlikely that the Shanghai court will make the opposite judgment. Therefore, from the perspective of protecting the weak, it is still possible to suggest the parties to protect their legitimate rights and interests through loyalty agreements.
Second, the problems that should be paid attention to in writing loyalty agreement.
Back to the beginning, analyze Chen Hai's guarantee to Zhang Lan:
guarantee
I (Chen Hai) did something wrong to my wife Zhang Lan, and I regret it very much. I am determined to turn over a new leaf. I will never do anything wrong to Zhang Lan again, and I will never beat and scold my wife and listen to her. Otherwise, I will give up all my property.
Guarantor: Chen Hai
Date, year and month
From the lawyer's point of view, this guarantee written by Chen Hai for Zhang Lan is unenforceable. In the event of a dispute, it is difficult for the court to support Zhang Lan's request according to the agreement, mainly because the conditions for paying property according to the agreement are too vague and inaccurate.
For example, what is included in "sorry for my wife", it is best to clarify the scope by listing.
In contrast, the following guarantees are more enforceable:
guarantee
Guarantor:
Guarantee content:
Because I had an extramarital affair and had a bad temper, my wife and I beat and scolded her for no reason and abused her father many times after marriage, which led to a rift in the relationship between husband and wife. After calm thinking, I realized my shortcomings and mistakes. We hereby promise that we will follow the following contents in the future:
1, don't cheat on the couple's feelings (such as extramarital sex).
Don't belittle your wife's personality and insult her.
3. Don't make things difficult for your wife, interfere with her, doubt her, prevent or restrict her personal freedom, and carry out behaviors that affect her normal work and life.
4. Parents and family members who do not beat or abuse their wives.
5. Do not conceal or conceal personal income. All the income of both parties is deposited in the same bank account. Family expenses and personal withdrawals shall be withdrawn from the passbook after consultation between both parties.
6. Do not beat your wife by violent means such as punching, kicking, biting, pinching, twisting, pushing and shoving.
In the future, if any of the above-mentioned behaviors or other behaviors lead to unbearable wife's divorce, it is deemed that I voluntarily give up my share of the marital property, and all the marital property belongs to the wife.
The above behavior is my true meaning.
Guarantor:
Date, year and month
Of course, the content of the above protection is too broad, and it is not just a constraint on extramarital sex. Whether you can get the support of the court in the trial practice is debatable, but it should be an indisputable fact that you can take the initiative in the trial.
In addition, the most important point is how to prove that the other party has violated the duty of loyalty in court. For example, whether there is extramarital sex. Chat records, phone lists, correspondence, and witnessing entering the room together for one night cannot directly prove the occurrence of extramarital sex. It is particularly important to collect relevant evidence. Don't expect the other party to respect the objective facts and admit their previous actions in court, but do a good job of investigation and evidence collection before court, and prove that the other party violated the agreed obligations with evidence rather than words, so as to win the lawsuit.
Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.