Legal Analysis On The Loyal Agreement Of Husband And Wife

The loyal agreement of husband and wife is common in reality, and the content of it is to make promises for the loyal obligations in general. When infidelity occurs, the loyal party can calls for the disloyal party taking responsibility according to the loyal agreement of husband and wife and the husband and wife hope to guarantee the stability of marriage by the force of it. Marriage ethics believes that the loyal agreement of husband and wife is inherent meaning of marriage, because it is based on emotion and trust which also is a prerequisite for success of marriage. The loyal obligations into legal norms as moral obligations, because "the Marriage Law" rules that "the husband and wife should be loyal each other" which shows the values of legal guidelines to the marriage parties. It can be said, the husband and wife themselves contract for it do not obey the ethics and moral and the spirit of law. However, because of wrong concepts and imperfect rules, there are several controversies for the nature and effect of the loyal agreement of husband and wife, for instance, some scholars deny the effect that the adjustment of loyal obligations is a moral category; some scholars recognize its effectiveness, thinking that it is autonomy of private law. The judgments of people’s court are different from each other too. No matter how the results of them, without exception, they all have caused widespread concerns, both acclaim and sharp criticism. The different judgments of the people’s court are not conductive to maintaining the unity of the legal system which are also not conductive to protecting legitimate rights and interests of husband and wife.According to the analysis of specific cases in the introduction of this article, especially the analysis of "the China’s first loyal agreement of husband and wife" and "the case of Changing empty-bed costs", we can see that the cases of loyal agreement of husband and wife have appeared opposite results, and the reasons of it mainly lies in the courts at all levels have different understanding on the legal nature and effect. In the academic and theoretical circles, there is a huge difference on the effect of the loyal agreement of husband and wife too; "the negative theory" and "the positive theory" give tit for tat. In this case, the legal analysis of loyal agreement of husband and wife is of great reality and necessity from the view of ethical、jurisprudence and department law. Only by solving the problem, the judicial practice can apply correct legal basis on deal with more and more cases of the loyal agreement of husband and wife.In the first part of this article, we analyze the historical background and the reality environment of the loyal agreement of husband and wife. When the society is faced with the historical period of transition, some negative phenomena such as the thought of sexual freedom and the underground trade of sex impact the traditional marriage ethics, high divorce rate lets marriage parties eager to make loyal obligations more clearly in order to ensure the stability and happiness of families. Furthermore, the enhancement of law concept and the integrity of marriage law also promote the production of the loyal agreement of husband and wife. For instance, the forth provision of "the Marriage Law" rules that "husband and wife should be loyal each other", and before this provision is promulgated, we usually difficult to sanction marital infidelity by legal means. After "husband and wife should be loyal each other" has be written into "the Marriage Law", this provision promotes the production of the loyal agreement of husband and wife greatly. Marriage parties have begun to contract each other under the spirit of "the Marriage Law", ensuring the implementation of loyal obligations. Only when we deeply understand the nature of the loyal agreement of husband and wife, we can make more appropriate determination of it.In the second part of this article, we deeply analyze the compliance with customs and the incompliance with customs of the loyal agreement of husband and wife from the ethical and legal perspective. The loyal agreement of husband and wife is a manifestation of the marriage contract, by equal consultation; husband and wife have agreement for the loyal obligations. The loyal agreement is an agreement of emotion and contract which is to strengthen the marriage ethics. The loyal agreement of husband and wife will not lead to marriage monetary, because the purpose of it is to pursue the stability of marriage rather than marital infidelity with money exchange. The nature of the loyal agreement of husband and wife is a kind of freedom of contract which will not endanger the freedom of marriage. If the freedom of contract of one marriage party damages to the other one, the law will be adjust it. At the same time, the loyal agreement of husband and wife means to strengthen the loyal obligations which can make up for missing the current lack of law and consistent with the purpose of marriage legislation. The legal adjustment of the loyal agreement of husband and wife is conducive to constrain a large of infidelity in marriage and ensure the legitimate rights of loyal part which consistent with the demand of social equity and justice.In the third part of this article, we focus on the legal nature of the loyal agreement of husband and wife. According to analyzing the elements of the loyal agreement of husband and wife, we clear that it’s the party’s intention to pursue the legal consequences of acts rather than friendship behaviors. In practice, these two different meanings should be separated, because friendship behaviors have no legal effect. In reality, only in the divorce proceedings can be called for compensation of infidelity, so the loyal agreement of husband and wife is a kind of contract which agreed upon compensation of divorce in nature. Signing of the loyal agreement of husband and wife is a civil legal act in most of the time:the proper subject、the real meanings of two parties, not violate the mandatory provisions of law and public interests. Signing of the loyal agreement of husband and wife is based on the husband and wife’s agreement created a relation of credit and debt. The subject the husband and wife agree is loyal obligation which laws do not expressly prohibit. The nature of the loyal agreement of husband and wife is a special anonymous contract; we can adjust it with civil law and the relevant provisions of the contract law.In the forth part of this article, we analyze the legal effect of the loyal agreement of husband and wife and discuss various kinds of invalid circumstances: when marriage is invalid the marriage parties do not have rights and obligations of husband and wife, so the loyal agreement of husband and wife is invalid; the agreement of restricting the freedom of divorce or the violations of human rights is invalid, because the former violates the legal principle of freedom of marriage and the later is an offense. We analyze the necessity and limits of judicial intervention, because the values of the loyal obligations have not measurable, the compensation of infidelity may be maxima list or minimalist, in such circumstances, judicial intervention should be necessary. The identification of liability should be taken into account the party’s property condition、affordability and so on. Judicial intervention must also maintain a certain self-restraint, such as the greatest possible respect for the agreement between two parties and focus on the functions of conciliation and so on.In summary, through a comprehensive analysis and argument, this article out of the mistakes of traditional theory and judicial practice, explaining that the loyal agreement of husband and wife do not violate the ethics of marriage and the contracting behavior of marriage parties comply with the purpose of marriage legislation, what is more, the law involved in adjusting the loyal agreement of husband and wife has its necessity and urgency in reality. Adjusted based on the law, we redefine the nature and effect of the loyal agreement of husband and wife from the perspective of civil legal acts and anonymous in the "Contract Law". It should be said, this article can help unifying the nature and effect of the loyal agreement of husband and wife in judicial practice, promoting the people’s court to make accurate and appropriate judgments in order to protect the system of healthy marriage and family and promote social development and progress.