Marital Infidelity Leads to Relationship Breakdown: Is a Fidelity Agreement Valid?

[2] Compiled from: Shandong High Court
 
In a marriage, spouses should be loyal to each other and treat each other with respect and affection. Yet some people cannot resist temptation. Can a loyalty agreement stating that "if one cheats, one leaves the marriage with nothing" guarantee the longevity of a marriage? Let us look at a divorce dispute case heard by the Xiangyin County Court.

 

Case review
Ms. Li (female) and Mr. Liu (male) registered their marriage in 1993. However, as they came to know each other more deeply over the course of their married life, the differences in their personalities and lifestyles became increasingly pronounced. On April 13, 2019, the husband discovered that the wife had been unfaithful, and the wife promptly issued a written undertaking to the husband: “If I do anything to betray the family again, I will bear a debt of 100,000 yuan and leave the marriage with nothing.” Because the two frequently quarreled over trivial family matters and their affection had broken down, the wife filed a lawsuit with the court, seeking a judgment of divorce and division of the marital property.
 
During the trial, the husband provided evidence of the wife's extramarital affair, including intimate chat records with a third party and photos and videos stored on her phone. After reviewing the evidence and questioning the wife, the judge confirmed that she had committed adultery during the marriage. Despite this, the wife, after apologizing in court, expressed that she was unwilling to bear liability for damages and demanded an equal division of marital property.
 
 
[1] Court Opinion
The court ruled that Li's extramarital affair had lasted nearly five years, and Liu agreed to the divorce, which was sufficient to determine that the marital relationship had indeed broken down, and the divorce was granted.
 
Regarding the division of marital community property, Liu argued that according to the agreement in the letter of commitment, Li should leave with nothing and bear the debts. Since the letter of commitment is essentially a written agreement on property disposition in anticipation of a future breach of the duty of fidelity between spouses, it falls within the category of a fidelity agreement. However, marital fidelity is in essence a matter of emotional morality. A fidelity agreement concluded between spouses should be performed voluntarily by the parties in accordance with the principle of good faith. The law does not prohibit spouses from entering into such agreements, but it does not grant them enforceability either, and they cannot serve as a basis for dividing marital community property or determining the custody of children.
 
Li's extramarital affair severely violated the duty of loyalty between spouses, destroyed the trust between husband and wife, and hurt Liu's feelings. It constituted an act of "other major fault" as stipulated in the Civil Code. The court ruled that the jointly owned property be awarded to Liu and, at its discretion, ordered Li to pay Liu 20,000 yuan in compensation for emotional distress.
 
 
The [1] The People's Republic of China Civil Code
Article 464 [Definition of Contracts and Application of Identity Relationship Agreements]
A contract is an agreement between civil subjects to establish, modify, or terminate a civil legal relationship.
Agreements concerning personal status relationships such as marriage, adoption, and guardianship shall be governed by the legal provisions applicable to such relationships; where there are no such provisions, the provisions of this Part may be applied by reference based on the nature of the agreement.
 
 
[1] The author's perspective
A "loyalty agreement" is a fairly common type of contract today, yet the law does not clearly define the nature of such agreements. The Supreme People's Court has made it clear in the Understanding and Application of the Marriage and Family Volume and the Inheritance Volume of the Civil Code of the People's Republic of China that a loyalty agreement entered into between spouses should be performed voluntarily by the parties in good faith, and that the law neither prohibits spouses from entering into such agreements nor grants them enforceability. In the author's view, the reason for this is related to the nature of marriage. Although such agreements do not violate the law and are valid, the courts will not enforce their contents.
 
The foundation of marriage should be affection, not material interests. However, the emotional harm caused by one spouse's infidelity should not be ignored, as it violates public order, good customs, and socialist core values. Therefore, in this case, the court protected the lawful rights and interests of the innocent party in the marriage, not only to establish correct values but also to build a harmonious society.