Are loyalty agreements signed during a marriage legally binding?
Spouses sometimes sign a loyalty agreement promising fidelity and a fixed sum in damages if one of them has an affair. The courts have not been uniform: Shenzhen has accepted such claims, while courts in Shanghai and Jiangsu have refused to hear them, holding that fidelity is a moral rather than a legal duty. Since the Civil Code the Supreme People's Court has said that disputes over loyalty agreements are best not accepted at all. The agreement binds the parties in conscience but is not enforceable, and the law neither prohibits it nor gives it effect.
In practice spouses often sign a loyalty agreement while the marriage subsists, usually in order to preserve its stability.
Such an agreement might provide that "the spouses shall be faithful to, respect and care for each other, and shall be responsible for the family, for each other and for their children. If one of them acts immorally during the marriage and betrays the other, for example by having an extramarital affair, that party shall pay the other RMB 1 million for injury to reputation and mental distress."
Does a loyalty agreement have legal effect in practice?
What attitude do the courts actually take to such an agreement?
Can a spouse rely on it to claim damages from the other?
A spousal loyalty agreement is a written agreement made by the spouses before or after the marriage by which, in order to ensure that neither breaches the duty of fidelity while the marriage subsists, they provide for liquidated damages or compensation.
In adjudication practice, courts take different views on whether such an agreement is valid.
The Shenzhen courts recognise its validity. Where a party relies on a breach of the loyalty agreement as the ground for divorce, the Shenzhen courts will support a claim for damages based on that agreement.
Courts in Shanghai and Jiangsu, by contrast, do not recognise its validity: where one spouse seeks to hold the other liable for breaching a loyalty agreement, neither will accept the case.
Since the Civil Code the controversy has tended to converge. In Understanding and Application of the Marriage and Family Part and the Succession Part of the Civil Code of the People's Republic of China, the Supreme People's Court states that courts would do better not to accept disputes over loyalty agreements between spouses.
A loyalty agreement is therefore no panacea for protecting a marriage and cannot insure love; it operates mainly as a moral constraint on the parties. Many problems in a marriage cannot be solved by law alone. Mutual respect, mutual support and mutual tolerance are what keep a marriage steady
and enable it to go far.
Legal sources
Article 37 Where a party requests that the other perform a promise of damages made in a loyalty agreement, on the ground that the other's breach of that agreement led to the divorce, the people's court shall support the request; where the damages agreed are excessively high, it may make an appropriate adjustment.
Shenzhen, Guidelines for Adjudicating Marital and Family Dispute Cases, 2014 revision
Guidelines for Hearing Family Dispute Cases
Question: Where spouses make a loyalty agreement providing that a spouse who breaches the duty of fidelity shall pay the other liquidated damages or compensation for mental distress, and one spouse sues to have the agreement confirmed as effective or to hold the other liable for breaching it, how should the matter be handled?
Answer: Whether spouses are loyal belongs to the realm of emotion and morality, and a loyalty agreement between them should be performed of their own accord. Where one spouse sues to have the agreement confirmed as effective, or to hold the other liable for breaching it, the court shall rule that the claim is not accepted; where the case has already been accepted, it shall rule to dismiss the action.
Jiangsu High People's Court, Guidelines for Hearing Family Dispute Cases (Marriage and Family Part)
Shanghai High People's Court, Questions and Answers on the Application of Civil Law
Question 3: Where spouses agree before or after marriage that one shall be faithful to the other and shall not have an extramarital affair, and that a breach shall be met with liquidated damages or compensation, is such an agreement actionable, and should the court support the claim?
Answer: The duty of fidelity under Article 4 of the Marriage Law is a moral duty, not a legal one, and an agreement in which one spouse treats that moral duty as consideration exchanged with the other cannot be understood as an agreement determining specific civil rights and obligations. Accordingly, after discussion by the adjudication committee of the High Court, it is clear that (1) ... (2) where spouses have signed a fidelity agreement and one of them sues only on the ground that the other breached it, seeking performance of the agreement or payment of liquidated damages or compensation, the people's court shall not accept the case.
Shanghai High People's Court, Questions and Answers on the Application of Civil Law, Issue 1, 2003
Understanding and Application of the Marriage and Family Part of the Civil Code
A loyalty agreement between spouses should be performed by the parties voluntarily and in good faith. The law does not prohibit spouses from signing such an agreement, but nor does it make it enforceable; considering the overall social effect, courts would do better not to accept disputes over loyalty agreements between spouses.
Understanding and Application of the Marriage and Family Part and the Succession Part of the Civil Code of the People's Republic of China