Simon Says: Is a loyalty agreement between a couple enforceable?

Published
11/24/2017 by

This is the thirty-ninth in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第39篇

 

 

Keywords: marriage law, loyalty agreement, divorce, compensation 

 

关键词:忠实协议;损害赔偿;离婚;婚姻法

 

 

Is a loyalty agreement between a couple enforceable?

 

西门说法:夫妻签订的忠实协议是否受法律保护?

 

Jill, aged 28 years old, had fallen in love a dozen times, but none led to a successful marriage. As Jill got older, her parents got more and more worried. One day, her mother said on phone, “I will find you a good husband.” Jill and her parents learned from their relations that Jack was a quite decent man and by coincident, he also fell in love with Jill. Perfectly matched, soon they were ready to marry.

 

Jill 28岁,谈过几次恋爱,可最终都以失败告终。眼看着自己的孩子至今没有结婚,Jill的父母十分着急,她妈妈在电话里说:“孩子啊,妈妈一定会帮你找到一个好丈夫的。”通过朋友的牵线搭桥,Jill和她的父母觉得Jack人还不错,而且Jack也对Jill有意,于是张罗起结婚的事情。

 

On September 9, Jill and Jack obtained a marriage certificate from the Civil Affairs Bureau and got married by law. Upon returning home, Jill pulled out a document entitled “Loyalty Agreement” from her drawer, for which she had prepared. Jack didn't know what it was about.

 

9月9日,Jill和Jack两人去民政局领了结婚证,两人正式结婚。回到家中,Jill拿出一张纸,上面写着“忠实协议”。Jack问道:“这是什么东西?”

 

Jill said, “I had been in love for several times, but all in vain. I am worried that our marriage might not last long. What could I do if you fall in love with others in the future?” Jack, trying to comfort her said, “I am not such a person and won't fall in love with others.” Jill said, “I cannot believe your words. You need sign an agreement with me. If a party betrayed the other, the defaulting one shall compensate the non-defaulting one 400,000 Yuan for emotional damages.” Jack agreed and the agreement was signed.

 

Jill说:“我以前的恋情都失败了,我很担心我们的婚姻能否长久,万一你以后见异思迁,爱上了别人,那我可怎么办呢?”Jack安慰她说:“我不是那种人,我一定不会变心的。”Jill接着说:“口说无凭,我要和你签一份协议,如果以后谁出轨背叛了我们的婚姻,就要给对方40万元的精神损失费。”Jack答应了,在上面签了字。

 

Two years later, Jill found Jack having an affair with a new grad. So she said angrily to Jack, “Now that you have betrayed me, I want to divorce you. According to the agreement you have to compensate me 400,000 Yuan for my emotional loss.”

 

两年后,Jill发现了Jack一直在外面和一个大学生保持不正当关系,愤怒地对Jack说:“你这个混蛋,你背叛了我,我要和你离婚,根据协议你还要赔偿我40万元的损失费!”

 

“You can divorce me, as we do not love each other, but I won't give a penny. That agreement is useless. If you want me to compensate you, I won't agree to be divorced.” Jack battled back.

 

Jack说:“离婚可以,我和你早就没什么感情了,但是要钱没门儿!那个协议就是一张废纸!如果要钱的话,我就不会同意离婚!”

 

Is a loyalty agreement between a couple enforceable?

 

夫妻签订的忠实协议是否受法律保护?

 

 Simon Says - Episode 39: Is a loyalty agreement between a couple enforceable?

 

Prof Simon Says:

西门教授说法:

 

According to the provisions of the China’s Marriage Law, both husband and wife shall assume the loyalty obligations to each other. In this case, Jill and Jack signed a loyalty agreement to guarantee fidelity between them. The agreement shall be considered as a tool to materialize the loyalty obligation of the Marriage Law. As the agreement is not prohibited by the law and expressed the true intention of the parties of their marriage, and therefore it shall be valid and enforceable. Jill may divorce Jack by negotiation and, if Jack refuses, Jill can initiate the divorce petition in a competent court on the ground of alienation of mutual affection and claim compensation for the emotional damages.

 

根据《婚姻法》规定,夫妻双方对彼此享有“忠实义务”,本案中的Jill和Jack签订忠诚协议,是为了防止夫妻不忠而签订的,实际上是对《婚姻法》中抽象的“忠实义务”的具体化,符合《婚姻法》的原则和精神。该协议没有违背法律的禁止性规定,而且是双方当事人的真实的意思表示,因此该忠实协议是合法有效的。Jill要和Jack离婚,可以先协议离婚,如果Jack拒绝,则Jill可以以夫妻感情破裂为由,向法院提起离婚诉讼,并提出赔偿主张。

 

Legal Provisions:

The Marriage Law of the People's Republic of China

Article 4:Husband and wife shall be faithful to and respect each other. Within the family, members shall respect the old and cherish the young, help one another, and maintain equal, harmonious and civilized marriage and family relations.

Paragraphs 1 & 2, Article 32: When one party alone desires a divorce, the organizations concerned may carry out mediation, or the party may appeal directly to a people's court to start divorce proceedings.
In dealing with a divorce case, the people's court should carry out mediation between the parties. Divorce shall be granted if mediation fails because mutual affection no long exists.

 

法律依据:

《中华人民共和国婚姻法》

第四条:

夫妻应当相互忠实,相互尊重;家庭成员间应当敬老爱幼,互相帮助,维护平等、和睦、文明的婚姻家庭关系。

第三十二条第1、2款:

男女一方要求离婚的,可由有关部门进行调解或直接向人民法院提出离婚诉讼。
人民法院审理离婚案件,应当进行调解;如感情确已破裂,调解无效,应准予离婚。

 

 

For more about this or to contact Professor Simon Choi at:

Emai: simonhkchoi@163.com,

Phone: +86 13823677853 or

WeChat: simonhkchoi

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com, +86 13823677853, or WeChat ID: simonhkchoi

 

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