With the improvement of people's awareness of the rule of law and the transformation of marriage concepts, it is becoming increasingly common for couples to sign "loyalty agreements". Many couples hope to "safeguard" their marriage by signing a loyalty agreement, which stipulates that if one party engages in infidelity such as infidelity or extramarital affairs in the future, the other party has the right to demand that the other party "leave the household" or receive less property.

So, if a couple really signs a "loyalty agreement", if one party has an extramarital affair during the marriage, can the other party definitely use this "loyalty agreement" to demand the division of marital property according to the agreement? Will his wishful thinking necessarily lead to success? Actually, it's not like that.

1、 Legal Basis

Article 1043 of the Civil Code of the People's Republic of China

Families should establish good family traditions, promote family virtues, and attach importance to the construction of family civilization.

Husband and wife should be faithful to each other, respect each other, and care for each other; Family members should respect the elderly and love the young, help each other, and maintain equal, harmonious, and civilized marriage and family relationships.

This provision is the legalization of the moral norms of marriage and family, integrating moral norms into legal norms, that is, clearly telling people in the form of legislation what kind of marriage and family relationships the state advocates. Many people mistakenly believe that this clause is a mandatory requirement for effectiveness, and based on this clause, they believe that loyalty agreements should be valid.

According to Article 4 of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Part of the Civil Code of the People's Republic of China (Part 1):

If the parties only file a lawsuit based on Article 1043 of the Civil Code, the people's court shall not accept it; Those that have already been accepted shall be dismissed by ruling.

2、 Supreme Court Viewpoint

Understanding and Application of the Inheritance Part of the Marriage and Family Code of the Civil Code of the People's Republic of China

The Supreme People's Court further clarified in the book "Understanding and Application of the Inheritance Part of the Marriage and Family Code of the Civil Code of the People's Republic of China" that:

The signing of a loyalty agreement between spouses should be voluntarily fulfilled by the parties in good faith. The law does not prohibit spouses from signing such agreements, but it does not give them compulsory enforcement. Considering the overall social effect, it is advisable for the court not to accept disputes over loyalty agreements between spouses.

The reasons are as follows:

01 May lead to infringement consequences

If the court accepts such loyalty agreement disputes, the party claiming 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 pursuit of rape for the sake of evidence, eavesdropping on phone calls, privately opening letters, and even worse violations of personal privacy rights. The emotional entanglement between spouses may evolve into a criminal case, and its negative effects cannot be underestimated.

02 Increase the cost of marriage and deteriorate the marital relationship

One of the consequences of granting legal enforceability to loyalty agreements is to encourage parties to sign a loyalty agreement before marriage that can "bind" the other party. This not only increases the cost of marriage, but also deteriorates the marital relationship based on mutual emotions and trust.

03 belongs to the realm of emotions and morality, and should not be enforced

The loyalty agreement essentially belongs to the emotional and moral category, and it is good for the parties to voluntarily fulfill it. If the party who violates the loyalty agreement voluntarily leaves the household or compensates with a certain amount of money, they will pay an economic price for their infidelity. But if one party is unwilling to fulfill, they should not be forced to fulfill the loyalty agreement.

3、 Judicial Practice

Based on the above opinions, in actual judicial rulings, most courts believe that:

The "loyalty agreement" signed by both husband and wife belongs to the expression of party autonomy and also falls within the scope of contract in form. However, its substantive content belongs to the emotional and moral category, and is not a legal obligation. The parties can voluntarily perform it, and the law does not give it compulsory enforcement. If one party only demands compulsory performance from the other party based on this, the court will not support it.