Shenzhen Professional Marriage and Family Lawyer Tang Yunhong: Will the court recognize the 'fidelity agreement' signed during marriage, which stipulates that the unfaithful party must leave with

"To ensure peace of mind, my husband and I signed a fidelity agreement, stipulating that the one who commits infidelity must leave with nothing and all property belongs to the other party. Can this really guarantee my rights? 'If he really commits infidelity after signing the agreement, will the court order him to leave with nothing according to the agreement?' This is the most concerned issue for many couples after signing a fidelity agreement. Many people believe that signing an agreement gives them a 'safeguard,' but this is not the case. Daohua Family Law attorney combines legal provisions and judicial practice to clarify the truth for everyone."

 

The "clean break" clause in the fidelity agreement, will the court recognize it? The core conclusion is very clear: in most cases, the court will not directly enforce the "clean break" clause in the agreement. Although Article 1043 of the "Civil Code" stipulates that "couples shall be faithful to each other," this is only an advisory clause and not a mandatory legal obligation. The fidelity agreement is essentially a category of emotional and moral issues, which requires the parties to perform it voluntarily.

Firstly, it should be clarified that the "validity" and "enforceability" of the agreement are two different things. If the loyalty agreement is voluntarily signed by both parties without fraud or coercion, and its content does not violate any laws that prohibit, the court will recognize its legality, but will not compel the unfaithful party to fulfill the agreement of "leaving the house with nothing." For example, if both parties agree that the unfaithful party will give up all property, if the unfaithful party voluntarily complies, the law will not intervene; if they change their minds, the court will not force them.

Secondly, the court's judgment logic is to take care of the party without fault rather than to execute the agreement completely. During divorce, the court will treat the fidelity agreement as an important evidence for determining the fact of infidelity, combining the severity of the infidelity, and according to the principle of "taking care of the rights and interests of the party without fault," the court will decide to give the party without fault an additional 10%-20% of the joint property of the couple. Only in extremely rare and extreme cases (such as the party who committed infidelity having children with someone else and voluntarily giving up all property), the court may support a judgment similar to "leaving the house with nothing."

Be aware that some clauses are written in vain even if signed. The agreement stipulates that "abandoning custody of children in case of infidelity," "limiting one party's social freedom," and "high compensation" are invalid due to violation of legal provisions or public order and good customs; the clause of transferring a property gift without registration can also be revoked at any time by the party committing infidelity.

In fact, the greatest value of a loyalty agreement is to fix evidence of infidelity, providing support for the innocent party to claim a larger share of property and to assert compensation for mental distress ranging from 10,000 to 100,000 yuan. When signing, it is important to avoid extreme clauses, keep the original agreement and relevant evidence from the signing, and consult a lawyer for review when necessary to avoid invalid agreements.

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