Is a loyalty agreement between a couple enforceable?
On September 9, Jill and Jack obtained a marriage certificate from the Civil Affairs Bureau and got married by law. Upon returning home, Jill pulled out a document entitled “Loyalty Agreement” from her drawer, for which she had prepared. Jack didn't know what it was about.
Jill said, “I had been in love for several times, but all in vain. I am worried that our marriage might not last long. What could I do if you fall in love with others in the future?” Jack, trying to comfort her said, “I am not such a person and won't fall in love with others.” Jill said, “I cannot believe your words. You need sign an agreement with me. If a party betrayed the other, the defaulting one shall compensate the non-defaulting one 400,000 Yuan for emotional damages.” Jack agreed and the agreement was signed.
Two years later, Jill found Jack having an affair with a new grad. So she said angrily to Jack, “Now that you have betrayed me, I want to divorce you. According to the agreement you have to compensate me 400,000 Yuan for my emotional loss.”
“You can divorce me, as we do not love each other, but I won't give a penny. That agreement is useless. If you want me to compensate you, I won't agree to be divorced.” Jack battled back.
According to the provisions of the China’s Marriage Law, both husband and wife shall assume the loyalty obligations to each other. In this case, Jill and Jack signed a loyalty agreement to guarantee fidelity between them. The agreement shall be considered as a tool to materialize the loyalty obligation of the Marriage Law. As the agreement is not prohibited by the law and expressed the true intention of the parties of their marriage, and therefore it shall be valid and enforceable. Jill may divorce Jack by negotiation and, if Jack refuses, Jill can initiate the divorce petition in a competent court on the ground of alienation of mutual affection and claim compensation for the emotional damages.
Husband and wife shall be faithful to and respect each other. Within the family, members shall respect the old and cherish the young, help one another, and maintain equal, harmonious and civilized marriage and family relations.
When one party alone desires a divorce, the organizations concerned may carry out mediation, or the party may appeal directly to a people's court to start divorce proceedings.
Edgar can be contacted by scanning the QR code below, searching WeChat ‘edgarwlchoi’, and by email ‘edgarchoilaw@gmail.com’.