Loyalty agreements are useless; moral restraint is what truly matters

Compiled from: Jiangsu High Court
 
Case review
Plaintiff Li and defendant Ma registered their marriage in May 2012, and gave birth to a daughter, Li Moumou, in October 2012. After marriage, Li had an improper relationship with a third party, Luo. In January 2017, Li and Ma signed a marital agreement stipulating: due to Li's fault of having an improper relationship with the third party Luo, Li now expresses remorse. If either party in the future commits extramarital affairs, cohabitation with others, bigamy, domestic violence, abandonment, abuse, or other fault behaviors, causing the breakdown of marital affection and leading to divorce, then the daughter Li Moumou shall be directly raised by the non-fault party, with the fault party paying monthly child support of 5,000 yuan until the daughter graduates from university; the fault party shall forfeit all property under both parties' names without compensation; the mortgage on the jointly purchased house shall be solely repaid by the fault party until fully paid off; within ten days of the divorce taking effect, the fault party shall pay a one-time compensation of 200,000 yuan to the non-fault party. Subsequently, Li continued to associate with Luo, resulting in Luo becoming pregnant and giving birth to a son in July 2017, leading to the breakdown of marital affection between Li and Ma.

 
 

Li filed a lawsuit with the court, requesting a divorce judgment, custody of the daughter, and legal division of marital property. Ma agreed to the divorce but insisted on handling child custody and property division according to the marital agreement, additionally demanding 50,000 yuan in mental damages from Li and the legal division of 150,000 yuan that Li had given to the third party Luo during the marriage.
 
 
Relevant legal provisions
Article 19 of the Marriage Law of the People's Republic of China
Spouses may agree that property acquired during the marriage and pre-marital property shall be owned separately, jointly, or partly separately and partly jointly.
 
 
Court judgment
The Qingjiangpu District People's Court of Huai'an City rendered a first-instance judgment:
1. Grant the divorce between plaintiff Li and defendant Ma.
2. The legitimate daughter Li X will live with the defendant Ma X. Starting from August 2019, the plaintiff Li X shall pay child support of 1,500 yuan to Li X before the end of each month until she becomes independent.
3. The plaintiff Li X may visit Li X from 8:00 to 18:00 on the Saturday of the first and third weeks of each month, and Ma X shall provide assistance.
4. The jointly purchased house shall belong to the defendant Ma X, who shall be responsible for repaying the remaining mortgage. Ma X shall pay Li X 330,000 yuan in a lump sum within 30 days after this judgment takes effect.
5. The plaintiff Li X shall pay the defendant Ma X 30,000 yuan in moral damages in a lump sum within 30 days after this judgment takes effect.
6. Combining the monetary payments in items 4 and 5 above, Ma X shall pay Li X 300,000 yuan, which shall be paid in a lump sum within 30 days after this judgment takes effect.
 
After the above judgment was rendered, both the plaintiff and defendant disagreed and appealed to the Huai'an Intermediate People's Court. The Huai'an Intermediate People's Court rejected the appeal and upheld the original judgment. The first-instance judgment has now taken legal effect.
 
 
[1] The author's perspective
Article 19 of the Marriage Law shows that this provision establishes the system of marital property agreements. The agreement on property division and economic compensation is essentially a written commitment made by both parties to ensure they do not violate marital fidelity during the marriage, constituting a "loyalty agreement." However, the author believes that marital fidelity falls within the realm of emotional and moral ethics, and such "loyalty agreements" between spouses should be voluntarily fulfilled based on the principle of good faith. While the law does not prohibit such agreements between spouses, it also does not grant them enforceability, and such agreements do not fall under the marital property agreement circumstances specified in Article 19 of the Marriage Law.

 
 

In this case, the marital agreement between Li and Ma, which includes provisions on child custody involving personal status relationships, should be deemed invalid.
 
In summary, Ma's claim to handle child custody, division of marital property, and economic compensation according to the marital agreement lacks legal basis and should not be supported by the court. However, when dividing marital property, factors such as Li's fault in the marriage should be comprehensively considered, and appropriate consideration should be given to the innocent party to balance the interests of both sides.