Is a loyalty agreement between a couple enforceable?

Story 3  Marriage Law

Jill, aged 28 years old, had fallen in love a dozen times, but none led to a successful marriage. As Jill got older, her parents got more and more worried. One day, her mother said on phone, “I will find you a good husband.” Jill and her parents learned from their relations that Jack was a quite decent man and by coincident, he also fell in love with Jill. Perfectly matched, soon they were ready to marry.

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.

Is a loyalty agreement between a couple enforceable?

Law In A Minute

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.

Legal BasisMarriage Law (2001)

Article 4

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.

Article 32

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.

In dealing with a divorce case, the people's court should carry out mediation between the parties. Divorce shall be granted if mediation fails because mutual affection no longer exists.

About The Author

Edgar Choi: Fintech Counsel

Edgar Choi is the author of four books, viz: Commercial Law in a Minute; Economic Law in a Minute; Intellectual Property Law in a Minute and The Miracles Of Finance. These books shall be in print by early 2020. 

Edgar is a law graduate of the Fudan University with a mission is to promote law to serve better mankind, and he believes that legal literacy is a key factor to success. Since his childhood, Edgar has been taking joy in writing fiction and short stories. He hopes that through reading his legal stories, the traditional, passive way of learning law in class can be disrupted and readers can experience a brand new world by taking an active role and spending a few minutes every day in this series to have fun and actually remember what was read. 

Edgar can be contacted by scanning the QR code below, searching WeChat ‘edgarwlchoi’, and by email ‘[e-mail]’.