On The Legal Effect Of The Break Up Agreement Signed During The Extracurricular Heterosexual Cohabitation

According to the Marriage Law of the People’s Republic of China (hereafterreferred to as Marriage Law), bigamy shall be prohibited and no one who has aspouse may cohabite with any other people. However, some people who have aspouse do cohabite with other people in their real life, which leads to many difficultlegal problems. One of these difficult legal problems is how to comprehend the breakup agreement signed by two parties during their outside marriage cohabitationrelationship. Whether one party can sue for compensation according to the agreementis a controversial issue about which the interests of the related subject keep disputing.People’s courts accept such cases, leading people to discuss the effect of theagreement. Therefore, it’s necessary to further discuss such dispute processing rulesno matter from at the level of the theory or the judicial practice.As a result, the writer takes the effect of the break up agreement signed duringthe outside marriage heterosexual cohabitation relationships as the research object.This paper is composed of four parts discussed in the forms of the case analysismethod, the value analysis method and the social empirical method. First of all, thewriter introduces the background of outside marriage cohabitation. As a special socialphenomenon, it is a result caused by the collision of old and new system, Chineseculture and foreign culture during the social transition period. At the same time,outside marriage cohabitation is also the main reason for the high divorce rate.Outside marriage cohabitation violates the Marriage Law and also brings the problemthat how to make out the effect of the break up agreement during the outside marriagecohabitation relationship. In the second part, the writer of the paper introduces anddiscusses the opinion of the supreme people’s court on the effect of the break upagreement signed during the outside marriage heterosexual cohabitation relationship.But as showed in the Marriage Law of the People’s Republic of China (theexplanation of some issues (3)(draft version)，the supreme people’s court does notgive a clear answer on the effect of such break up agreements. In the third part, thewriter introduces the scholars’ views of the effect of such agreements. There are threedifferent views. Some scholars think that they are effective because they are signed onthe autonomy of the will which we shall respect. On the contrary, some think they are void because they are signed under the illegal relationship. These agreements goagainst the state and social morals so that they shall not be protected by law. In thethird, the writer introduces a natural debt theory that nature of debt goes with theprovisions of the draft version. The writer of this paper argues the agreements shouldnot be simply defined effective or void, but we should distinguish differentcircumstances make a difference as such agreements are very special. The theory ofeffect with attached conditions is reasonable. Only accord with certain conditions canthe break up agreements be protected by law. In this part, the writer also expoundsconditions and standards for a effective break up agreement, which can attack illegaloutside marriage cohabitation and protect the weak. In the fourth part, the writershows the present condition in Marriage Law and tries to give some suggestions forimproving.This paper brings in the relationship of contract theory to providereasonable basis for the theory of effect with attached conditions. In the relationshipof contract theory, not only we should protect the parties under the accord, reflectingcontract law as a private law of the character of autonomy respecting the autonomy,but also we should judge the activities with other conditions other than parties’ will.That is to say, when we judge a break up agreement, the first factor we must think ofis that the party who ask for compensations shall provide evidences to prove the effectof the agreement. If she or he can do as this, the judge in the comprehensiveconsideration of factors which should be considered can make the break up agreementeffective reasons within the scope of the effective sentence. If can not, the agreementmay be deemed to be void.