TAN Fang is a family law expert. Partner of Shanghai Huacheng law firm, deputy director of civil Professional Committee of National Lawyers Association,
She has been awarded the title of Shanghai excellent female lawyer and March 8th red flag bearer of Xuhui District, Shanghai.
At the end of 2016, when public figures frequently derailed, a loyalty agreement template appeared on the Internet.
But can loyalty agreements really make marriage safer?
Can the loyalty agreement stipulate spiritual loss fee?
Hu Haoqiang and ye Rong met at a friends party in early 1998. They got on well with each other and registered for marriage a year later. In December 2008, Hu Haoqiang had an improper relationship with his colleagues after drinking, and opened rooms in the hotel many times. Since then, ye Rong repeatedly filed for divorce, and Hu Haoqiang wrote many letters of repentance to ensure that he would not cheat again. On September 5, 2009, the two parties signed the agreement, which agreed: if both parties have evidence to prove that the other party is unfaithful to the husband and wifes feelings, and the fault party first filed for divorce, they must bear the following responsibilities: 1. The fault party must go out of the household net and bear all the debts of the family. 2u3001 The party at fault shall pay compensation of 500000 yuan for mental damage to the party without fault.
On January 6, 2014, Hu Haoqiang sued the court for divorce, and ye Rong asked the court to divide the property according to the agreement signed by both parties.
The court held that the law provides that one spouse bigamy or cohabits with others and that the other can claim damages. At the same time, the law does not explicitly prohibit the other party from claiming damages when the other party fails to achieve serious circumstances such as bigamy or cohabitation with others. In other words, the agreement signed by Hu Haoqiang and ye Rong did not violate the mandatory provisions of the law, and the court held that the agreement was valid. In terms of the amount, the court adjusted the amount from 500000 yuan to 200000 yuan according to the agreement of both parties and the local social and economic level.
Can loyalty agreement claim compensation for youth loss?
In April 1999, Wang Yong and Zhao Ling met each other. After a period of time together, the relationship between the two gradually heated up, in August of the same year in the Civil Affairs Bureau for marriage registration. After marriage, there was less passion and romance, more daily trivialities, and the relationship between Wang Yong and Zhao Ling gradually faded. In order to inject a shot of tonic into marriage, Wang Yong and Zhao Ling signed a loyalty agreement on January 1, 2001, which stipulates that husband and wife should respect each other, help each other, love each other, and treat each other faithfully. If one party has problems in moral character and applies for divorce to the other party, he must compensate the other party for the spiritual loss and youth loss, totaling 300000 yuan.
But life is more cruel than imagined. In the autumn of 2004, two people quarreled over trivial matters. Wang Yong moved away in a rage, and the two began to live apart. During the separation, Wang Yong had an extramarital affair with a woman. In 2005, Wang Yong filed divorce proceedings twice, the first time was rejected by the court, and the second time, Wang Yong voluntarily withdrew the lawsuit. In 2007, Wang Yong filed a divorce lawsuit again, asking for a divorce with Zhao Ling. Zhao Ling filed a counterclaim against Wang Yongs claim, asking Wang Yong to pay liquidated damages for breach of the agreement, namely 150000 yuan for spiritual loss and 150000 yuan for youth loss, totaling 300000 yuan.
The court held that the agreement was signed by the plaintiff and the defendant for the purpose of mutual respect, mutual help, love for each other and loyal treatment during the marriage relationship. It is the expression of the true intention of both parties, and does not violate the legal provisions, and should be recognized as effective. During the separation period, Wang Yong and other women had extramarital affairs, which led to the rupture of the couples feelings and made Zhao Ling suffer from mental injury. Wang Yong not only violated the agreement, but also violated the legal provisions that husband and wife should be loyal to each other. He should compensate Zhao Ling for the spiritual loss according to the agreement. However, Zhao Lings claim of youth loss does not conform to the law, so the court will not support it. Finally, the court ruled that Wang Yong compensated Zhao Ling for the spiritual loss of 150000 yuan, and the two ended in divorce.
Not long after that, Han Juan found that Xu Qiang and her female colleagues opened a room, she completely gave up. She showcased the evidence of her infidelity to Xu Qiang. After several communications, she still couldnt retrieve it, and her marriage went to death completely. Finally, the heart broken Han Juan sued the court for divorce.
When Han Juan came to the court to wait for the verdict with full confidence with the husband and wife property and loyalty agreement signed by the two people, what she wanted to see was the last ending she wanted to see.
The court held that according to Article 14 of the third judicial interpretation of the marriage law, if one of the parties to a private agreement on the division of property with divorce as the condition, if one party repents in the divorce proceedings, the peoples court shall determine that the property division agreement has not come into force, and divide the joint property of the husband and wife according to the actual situation. In this case, although the two parties signed the agreement on property and loyalty of husband and wife on September 15, 2013, because the agreement involves the division of property on the condition of divorce, and Xu Qiang repented in the divorce proceedings, the peoples court should divide the joint property of the husband and wife according to the actual situation according to law, and rejected Han Juans claim for all the property after marriage. The property guarantee which has no legal effect in marriage becomes a dead letter.
Zhang Lin and Qiu Wei changed from colleagues to lovers. They married in 2005 and had a son in 2008. At the beginning of the marriage, the two people had a good relationship, but after a long time, the relationship gradually broke down. In 2011, the two signed the husband and wife loyalty agreement, which stipulates that both husband and wife must be absolutely loyal to the other party. If one party violates the agreement, it will automatically give up the joint property of the husband and wife, and automatically clear the door, and pay the injured party 1.5 million yuan of reputation compensation and spiritual damage compensation; when divorce, the responsible party shall not obstruct, and take the initiative to give up the childs custody, family property and other property Property ownership, and monthly payment of child support, education, medical, insurance, living expenses, etc.
Qiu Wei sued for divorce in 2012, but the original court rejected his divorce request. After a while, Zhang Lin found out that Qiu Wei was having an affair. In a fury, Zhang Lin filed a divorce lawsuit to the court, demanding that the property be divided and the child should be raised according to the husband wife loyalty agreement.
The court held that in this case, both parties agreed that the party violating the duty of loyalty would lose the childs right of custody and pay a high amount of maintenance fee every month, which was inconsistent with the principle that the determination of childs custody right was beneficial to childrens physical and mental health and the protection of childrens legitimate rights and interests. The property liability of the party who violates the duty of loyalty stipulated in the agreement is also too strict. Even if Qiu Wei is the fault party who violates the duty of loyalty, he also has his legal property rights and interests. If the agreement is carried out according to this agreement, it may cause Qiu Weis life difficulties. Zhang Lin has a huge profit, and the interests of both sides are too unbalanced, which is not conducive to the healthy growth of Qiu Weis children. The court rejected Zhang Lins request for Qiu Wei to leave the house and claim for child custody according to the husband wife loyalty agreement.
Finally, the court ruled that Qiu Wei paid Zhang Lin 50000 yuan in compensation, and the child was raised by Qiu Wei.
1u3001 Can loyalty agreement stipulate youth loss fee and spiritual damage compensation?
Firstly, the loyalty agreement should avoid the contents of personal relationship such as no divorce, abandonment of child custody, or it will be invalid due to violation of the mandatory provisions of the law.
3u3001 If there is no divorce, can you claim compensation from the law only according to the loyalty agreement?
First, strictly implement the provisions of the interpretation of the Supreme Peoples Court on Several Issues concerning the application of the marriage law of the peoples Republic of China (1). If a party brings a lawsuit only on the basis of Article 4 of the marriage law, the peoples court shall not accept it; if it has already accepted the case, it shall rule to reject the prosecution. (Article 4 of the marriage law: husband and wife shall be faithful to each other and respect each other; family members shall respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations.)
Second, the peoples court will not accept the case that the husband and wife have signed a loyalty agreement, and now one party only takes the other partys breach of the loyalty agreement to sue for the other partys performance of the agreement or payment of liquidated damages and compensation for losses.
4u3001 Can loyalty agreement be notarized in a notary office?