The Study On The Effectiveness Of Couple Loyalty Agreements

The husband and wife loyalty agreement is an agreement between the husband and wife in order to maintain the stability of marriage and family and their own rights and interests before marriage or during the duration of the marriage relationship,which specifies the duty of loyalty between the husband and wife and the adverse consequences to be borne by the violation of the duty of loyalty.The validity of conjugal loyalty agreement is always a controversial subject in theory and practice.There are different views on the theory of validity,invalidity,differentiation and natural debt of the marital loyalty agreement.Since the Supreme People’s Court has adopted the "four Nos" principle for disputes over marital loyalty agreements,that is,neither acknowledging nor denying the validity of loyalty agreements,nor intervening nor supporting them,the issue seems to have become a "land outside the law".This can only reflect the Supreme People’s Court’s cautious attitude towards this complex issue.In the reality that disputes and academic debates around this issue have not stopped,the final conclusion cannot be reached.The husband and wife loyalty agreement should belong to the "legal space".It is not reliable to adjust the loyalty agreement solely by virtue of morality,and avoiding talking about it is actually condoning the disloyal behavior,which seriously affects the social atmosphere.The current issues related to the validity of loyalty agreement mainly exist as follows: the nature of loyalty obligation and whether it belongs to legal obligation;The nature of the loyalty agreement;Whether the loyalty agreement signed between husband and wife should be included in the scope of legal adjustment.The premise of studying the validity of loyalty agreement is to understand the duty of loyalty between husband and wife.In particular,the duty of fidelity should be understood in a narrow sense to include only the sexual exclusivity of husband and wife towards each other.The attitude towards this special duty of loyalty between husband and wife should not only be passively not violated,but should be actively maintained through behavior.Article 1043 of the Civil Code stipulates the duty of loyalty,which is also the basic principle of marriage and family in the Civil Code.The duty of loyalty has the dual attributes of moral and legal obligations.The faultless party in the marital relationship sues the party who violates the duty of loyalty according to the content agreed in the loyalty agreement,which is the basis of the right of claim.As for the nature of the loyalty agreement,because it is based on the marital relationship,the nature of the agreement is also inextricably related to the nature of marriage.Marriage is a contract that is highly integrated with social life and social system.The loyalty agreement signed between husband and wife belongs to the contract of identity relationship in nature.It is not the behavior of identity friendship but civil legal behavior,which can be adjusted by law.The validity of the conjugal loyalty agreement shall be judged according to Article 143 of the General Provisions of the Civil Code of the People’s Republic of China.In practice,we should adhere to the "differentiation theory",judge whether the specific nature of the agreement belongs to identity relationship agreement or property relationship agreement based on the specific content of the agreement and the expected legal effect,distinguish the types of loyalty agreement,and discuss the effectiveness of the agreement through the typing analysis path.From the perspective of law and economics,we can get more sufficient feasibility demonstration by adopting the view of differentiation and the approach of effectiveness analysis,and the conclusion is also consistent with the position of legal pragmatism.As for the personal loyalty agreement,it belongs to the pure identity relationship agreement in nature,involving the improper agreement of personal nature,should be invalid;As for the property loyalty agreement,it belongs to the property relationship agreement in nature and is essentially a contract signed by the subject with a special identity relationship.As long as it complies with the provisions of Article 143 of the Civil Code,it should be recognized as valid.If the amount of "compensation" stipulated in the loyalty agreement obviously exceeds the reasonable scope,such as the so-called "net departure" clause included in the agreement,the validity of the loyalty agreement can still be regarded as effective,but it should be adjusted according to the relevant provisions of the applicable contract of excessive liquidated damages,so as to leave the share of basic living needs for the party who is responsible for performing the obligations.The rest shall be performed to the faultless party in accordance with the contents of the agreement;For the mixed loyalty agreement,we should distinguish the parts involving personal life and property,and judge their effectiveness separately.