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

[2] Compiled from: Shandong High Court
 
In a marital relationship, spouses should be loyal and respect each other, but some always succumb to temptation. Can a loyalty agreement stating "if one commits adultery, they leave with nothing" ensure a lasting marriage? Let's take a look at a divorce dispute case heard by the Xiangyin County Court.

 

Case review
Li (female) and Liu (male) registered their marriage in 1993. However, as they gradually gained a deeper understanding of each other in their married life, differences in their personalities and living habits became increasingly prominent. On April 13, 2019, the husband discovered that the wife had engaged in an extramarital affair, and the wife immediately issued a written commitment to the husband: "If I do anything disloyal to the family again, I will bear a debt of 100,000 yuan and leave with nothing." Due to constant quarrels over household trivialities and the breakdown of their relationship, the wife filed a lawsuit in court, requesting a divorce and the division of 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 property, Liu argued that Li should "leave with nothing" and bear the debt as stipulated in the written commitment. The court held that this commitment was essentially a property disposition agreement made in writing for future violations of marital fidelity, falling under the category of "fidelity agreements." However, marital fidelity is essentially a matter of emotional and moral ethics. Such agreements between spouses should be voluntarily fulfilled by the parties based on the principle of good faith. The law does not prohibit such agreements but also does not grant them enforceability, nor can they serve as a basis for dividing marital property or determining child custody.
 
Li's extramarital affair seriously violated the duty of marital fidelity, destroyed trust between the spouses, and hurt Liu's feelings, constituting "other major faults" as defined in the Civil Code. The court ruled that the jointly owned house belonged to Liu and determined that Li should pay Liu 20,000 yuan in moral damages.
 
 
《 [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 relatively common type of contract nowadays, but its nature is not explicitly defined in law. The Supreme People's Court, in the "Understanding and Application of the Marriage and Family and Inheritance Parts of the Civil Code of the People's Republic of China," clarifies that loyalty agreements between spouses should be voluntarily fulfilled by the parties in good faith. The law does not prohibit such agreements between spouses, nor does it grant them enforceability. The author believes that the reason is related to the essence of marriage. Although such agreements are valid and do not violate the law, courts will not enforce their terms.
 
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.