On The Loyalty Agreement Between Husband And Wife

With the continuous improvement of social material living standards, people’s concepts are also constantly changing and developing, one typical example is the evolution of people’s attitude towards sex:from previous sexual secrecy to today’s epidemic of sexual freedom and sexual liberation ideas. Currently, many so-called "keeping mistress" extramarital affairs in Chinese society heavily threaten the stability of marriage and the harmony of family. Yet, our marriage law does not stipulate the legal liability for those who violate the faithful obligation between husband and wife, Many couple’s legitimate rights can not be legally protected when their spouse cheat on them. As a result, many couples contract the marital loyalty agreement in order to supervise and urge each other to observe the faithful obligation. But both academic circle and judicial practice do not reach a consensus on whether such agreement is valid or not, and support forces and opposition forces are well-matched.This paper is mainly divided into four parts:in the first part, two typical cases are introduced to post the questions and indicate the presence of weird phenomenon of "same case, different judgment", then summarize the main reasons of academic validity theory and invalidity theory. The second part mainly focuses on the contractual nature of the marriage and illustrates that the essence of the loyalty agreement between husband and wife is the supplementary agreement of marriage. The nature of the loyalty agreement is the contract about property. The third part analyzes the social reasons and legal reasons that lead couple to sign the loyalty agreement. The legal act of the loyalty agreement between husband and wife should be judged according to the standard of the elements of civil legal act and the legal significance of affirming the loyalty agreement. The forth part mainly analyzes the applicative problems which exist in the cases of loyalty agreement between husband and wife in the judicial practice. I think the right of claim of the loyalty agreement between husband and wife should be under the premise of divorce. The judges should take the income of couples and local living standards into considerations to decide whether the penalty is reasonable or not. This part also analyzes the evidence problems exist in the cases of loyalty agreement between husband and wife.I think the loyalty agreement defends the faithful obligations between husband and wife, the essence of the agreement is contract, the agreement specifies the abstract responsibility of faithful obligations between husband and wife, it is in the accordance with the spirit and principles of marriage law. The loyalty agreement should be valid if the contents do not violate the law and regulations and meet the requirements of principles of good morals together with the civil legal acts. Affirming the legal effects of loyalty agreement is in line with the marital moral norms,and is helpful for families’ harmony. Considering the judicial embarrassment caused by the "same case, different judgement", the Supreme Court should issue judicial interpretation to show a clear attitude or the National Congress need consider amending the Marriage Law to fundamentally solve this kind of problems.