Legal Effectiveness Of Conjugal Loyalty Agreement

The divorce rate is spiralling upwards annually in current society, extramarital affairs are always the primary cause of marriage breakdown. However, with the law been vague about conjugal faithful obligation, some couples choose to sign the conjugal loyalty agreement to ensure their interests from infringement and trying to compensate for the lack of legislative and judicial remedies in practice.This paper discusses the legal effectiveness of loyalty agreement based on its nature. The paper (except prefaces and summary) divides into four chapters as following:Through the brief introduction of cases, chapter one reveals the phenomenon of different verdicts in the same kind cases and the status Quo of legal norms on loyalty agreement.Chapter two defines the concept of conjugal loyalty agreement:it generally refers to a written agreement signed before or after marriage, which requiring the couple to be loyal to each other during their marriage.In case one who breaches this faithful obligations, the other has the right to claim default fine, mental compensation or other forms of compensation. This agreement can be classified into three types:loyalty agreement of personal feature, loyalty agreement of property feature, loyalty agreement of both personal and property features. In chapter three, the nature of loyalty agreement is emphatically analyzed. As the consensus of parties can be seen from the purpose of civil jurist acts, which is also show the difference between identity agreements and property settlements. Since the loyalty agreement is primarily aimed at complying with faithful obligations, it is an identity agreement. Chapter four expounds the effectiveness of conjugal loyalty agreement under the background of the current law, and responses to the queries from two theories:the theory of invalid and the theory of naturalis obligation. We can see that the faithful obligation was recognized in extraterritorial law and it will bring the liability if been breached in varying degrees. Loyalty agreement should been regulated by the general principles of the civil law and marriage law instead of the contract law and tort law in our country. In a conjugal loyalty agreement, the faithful obligation, as a statutory obligation, shall be agreed again, And this is totally reflects the right of autonomy of will. The loyalty agreement just confirm the faithful obligation, which is a statutory obligation, and dose not be null and void as contradicting the mandatory of identification right and personal liberty. Since this identity agreement conforms to the effective conditions of the civil juristic acts and is also in accord with the basic spirit of the marriage law if recognized as valid. However, it is important to note that it shall not in violation of the prohibitive norm and public order and good customs when signing the loyalty agreement.