On The Loyalty Agreement Between Husband And Wife

Recent years, Considering of couple’s loyalty and marriage stability, more andmore marriage parties sign “Marital Loyalty Agreement” based on equality andwillingness. Up to now, there are still many disputes on the concept, nature and legaleffect of the marital loyalty agreement in academia. The disputes in the judicialpractices have caused an awkward situation, that is the same or similar cases havedifferent judgments. This paper analyzes the up-mentioned problems under the currentmarital laws and puts forward the writer’s the opinions.This paper includes the following four parts:Part one, the nature of the duty of loyalty. At present, there is no agreement onwhether the duty of loyalty is the duty of marriage law. Although the duty of loyalty isrelated to family ethics, it is too recklessly to restraint it by morality only. The lawshall play a more prominent role in the protection of the rights and interests of theno-fault party. Combining with article3,4, and46of the Marriage Law of People’sRepublic of China, the writer further demonstrates that the duty of loyalty is a legalduty. Finally, the writer illustrates the ethical and legal values of stipulating the dutyof loyalty as a legal duty.Part two, the nature of the marital loyalty agreement. Starting from the nature ofmodern marriage, the writer points out that modern marriage is a legal relationshipformed by a consensus reached by equal heterosexual to live together forever, andwith the appearance and characteristics of the contract, it adheres to principle of equality, freedom and justice. Marriage loyalty agreement is a supplementaryagreement to the basic marriage agreement reached by and between husband and wifeabout the marital loyalty. It has basic contract characteristics, such as voluntarilyentering into and including a consensus. But because loyalty agreement relates to thepersonal relationship between the husband and wife, the main contents of loyaltyagreement should be limited to consequences as to violate the duty of loyalty.Part three, the validity of marital loyalty agreement. Firstly, the writer analyzesthe current situation of the validity of the loyalty agreement, and brief introduces tothe controversy in academia and the judicial practices. The writer thinks it is biased tojudge the validity of the loyalty agreement without considering its contents. However,as a conventions and refinement on the consequences of the breaching of the duty ofloyalty, its validity shall be confirmed from the value perspective. Of course, whenjudging of the validity of the loyalty agreement, the validity of its specific provisionsshall also be judged. Therefore, in this part the writer collects the various loyaltyagreement in the judicial practice, summarizes three main types of the loyaltyagreements as following: loyalty agreement concerning personal relationship, loyaltyagreement concerning property, loyalty agreement concerning both property andpersonal relationship, and illustrates, one by one, under what conditions these threetypes of loyalty agreement shall be effective.Part four, the establishment of solution mechanism for loyalty agreement. Thewriter thinks the law shall clearly define the contents covered by the loyalty duty,incorporate the provisions concerning the adultery, illegal cohabitation behavior todeny the legality of extra-marital sex and confirm the validity of the loyaltyagreement. As to the judicial practices, the validity of the loyalty agreement shall bedetermined by the specific contents of each agreement. With the premise of meetingall the requirements of a contract, the loyalty agreement shall be effective，as long asit does not violate the prohibiting stipulations and the public order and morals, anddoes not harm the legitimate rights and interests of a third person. Of course, thejudgment of the validity of the loyalty agreement shall also includes the judgment ofthe validity of the specific terms in the agreement, which shall be divided into two parts and judge their validities according to the corresponding legal provisions.