On The Loyalty Agreement Between Husband And Wife

In recent years, the divorce rate is rising increasingly, so many couples decide tosign a loyalty agreement in order to make sure that husband and wife will be truthfulto each other and protect their marrage from fall apart. However, Marriage Law ofPeople’s Republic of China does not expressly provide for the nature and effectivenessof the loyalty agreement, and only has a abstract provision in general principles. Thelack of law resulting in many different judgements of the courts in similar cases andarising a lot of controversies among scholars about the effectiveness of the loyaltyagreement. That is the reason why I choose loyalty agreement as the topic of mymaster’s thesis, expecting to provide for some effective solutions in this area.Generally, the paper is divided into five parts:Chapter one briefly introduces the background of loyalty agreement andlegislative status quo, and then lead to two typical cases accepted by the Court ofShanghai and Nanjing on the issue of loyalty agreement.Chapter two discusses the duty of loyalty and loyalty agreement betweenhusband and wife, including its defination, nature, and classification. The appearanceof this phenomenon have its profound social and legal reasons.Chapter three elaborates whether loyalty agreement has legal binding force.Some scholars do not take loyalty agreement as a valid contract mostly based on theethic prospect, while other scholars believe it should have contractual legal force aslong as the loyalty agreement meet the substantial elements of a valid contract. Chapter four focuses on the issues related to the loyalty agreement, such as thedifferences between a divorce agreement and a loyalty agreement, the compensationfor damage according to Article46of the Marriage Law and whether it is feasible toenforce a loyalty agreement during the marriage.Chapter five gives several concrete suggestions about loyalty agreementincluding (1) add more circumstances in which the innocent party shall be entitled toclaim damages according to Article46of the Marriage Law;(2) how to determine theamount of compensation that agreed in a loyalty agreement;(3) how to allocate theburden of proof in case of infidelity spouses.