Do cohabitation guarantee and loyalty agreement have legal effect?

In daily life, have you ever heard the expression "go out clean, live together, and make a loyal agreement"? Many friends have made great efforts in these agreements in order to protect their own interests or maintain their marriage, but most of them don't know or take it for granted whether these agreements have legal effect. Today, Bian Xiao will show you a thing or two. This article is for reference only.

Does the "cohabitation guarantee" have legal effect?

Let's look at a case first:

Su Mou, a 40-year-old contractor, came to work in Shenzhen 10 years ago. In recent years, due to contracting construction projects, his pockets have gradually expanded. In May of 20 10, Sue met Zhao, a 22-year-old woman. Although the age difference between the two is more than ten years, there is still a "spark of love" after many contacts. However, Sue is actually married and has a son. (The characters in the text are all pseudonyms)

2065438+March 2005, at Zhao's strong request, Su wrote a "cohabitation guarantee": "I promise to divorce my wife within three months and then marry Zhao. If not, I am willing to pay Zhao 200,000 yuan. I promise here. " Sue's signature and date are on the guarantee, and Sue also pressed her handprint. After that, Sue lived with Zhao Yifu's wife. 2065438+At the end of February, 2006, Su broke up on the grounds of their incompatible personalities, and said that she didn't want to see Zhao again. After that, no matter how entangled Zhao was, Su ignored it.

2065438+In July 2006, the unbearable Zhao brought a lawsuit to the court with the cohabitation guarantee written by Su, requesting the court to order Su to pay a penalty of 200,000 yuan. Zhao believes that "the letter of guarantee is actually an agreement between me and Sue, and Sue should pay liquidated damages for breach of contract, which is also the price he should pay for breaking his promise".

However, this statement was not recognized by the court and rejected Zhao's claim.

Lawyer Liu, director of the Law House, said that this guarantee violates the principle of freedom of marriage, and the freedom of marriage and divorce is also free. As a compensation condition, it cannot be protected by law, and even if it is sued by the court, it will generally not be supported.

Liu Na, a judge of Wushisha District Court, said, "An instrument like' cohabitation guarantee' is invalid." The so-called "cohabitation guarantee" means that both men and women agree to pay liquidated damages to each other in order to ensure cohabitation. Once one party violates the agreement, it shall pay liquidated damages to the other party. The original intention of "cohabitation guarantee" is to maintain the cohabitation relationship between the two parties, hoping to restrain the two parties from breaking up easily in this way. But in reality, once the relationship between men and women breaks down, "cohabitation guarantee" often becomes an excuse for one party to ask for money. Article 7 of China's General Principles of Civil Law stipulates that civil activities should respect social morality and may not harm public interests or disturb public order. Setting up "cohabitation guarantee" violates this principle and should be invalid. (Article 8 of the General Principles of the Civil Law of People's Republic of China (PRC) and the national laws stipulate: "Civil subjects engaged in civil activities shall not violate the law or public order and good customs." Paragraph 2 of Article 153 specifically stipulates that a civil legal act that violates public order and good customs is invalid. 20 17 10 1 came into effect. Therefore, "cohabitation protection" guarantees the stability of cohabitation relations that are not recognized by law. This agreement violates the law, public order and good customs, and should be an invalid civil act.

From the form and content, combined with the provisions of the law, the "guarantee" can only have legal effect if it does not involve the personal relationship between husband and wife and does not violate the basic principles of civil law such as China's marriage law, otherwise it will be invalid because it violates the basic principles of law.

Does the Clean Body Leaving Home Agreement have legal effect?

1. Going out clean means that one party does not take any property when divorcing. However, this kind of behavior has no basis in China's marriage law. On this issue, the law is controversial. At present, the law has not clearly defined the effectiveness of such agreements. Whether it is effective or not depends on specific problems.

Judging from the current judicial practice, under normal circumstances, the law does not support the so-called conditional "house clearing agreement". If one party files for divorce, it will clean the house voluntarily. China's marriage law clearly stipulates that citizens have the right to freedom of marriage, including both freedom of marriage and freedom of divorce. It is illegal to restrict the other party's freedom of divorce by agreement, and it is illegal to give up all the property as a condition for divorce, which is essentially to restrict citizens' freedom of divorce. Therefore, this "clean body leaving home agreement" is invalid.

2. At the same time, Article 19 of the Marriage Law stipulates that husband and wife can agree on the ownership of the property acquired before marriage and during the marriage relationship, such as their own, joint ownership by * * *, partial ownership by themselves and partial ownership by * * *. The agreement shall be in writing. The agreement between husband and wife on the property acquired during the marriage relationship and the property before marriage is binding on both parties. That is to say, husband and wife can agree that the property acquired during the marriage relationship and the property before marriage belong to their own, * * * belongs to their own or part of it, and * * * belongs to their own parts. Such an agreement is legally binding.

Does the Marriage Loyalty Agreement have legal effect?

Tang Yu got married on August 20 10. On the same day, the two sides also signed a loyalty agreement between husband and wife, stipulating: "If either party has an extramarital affair that violates the loyalty of husband and wife, it will voluntarily give up half of the property rights of husband and wife." On September 20 16, Tang and Wang were found living together. Later, Yu proposed to Tang to fulfill the marriage loyalty agreement, not asking for divorce, and promised to give him a permanent residence if Tang no longer "breached the contract".

However, the legal profession has different opinions on whether to require Tang to fulfill the marriage loyalty agreement alone.

One view is that China implements the joint property system of husband and wife in principle. If we admit that the marriage loyalty agreement can be prosecuted separately, it is tantamount to putting the joint property of husband and wife from the left pocket to the right pocket, which will only increase the judicial cost. According to the provisions of Article 46 of Marriage Law, Article 29 of Interpretation of Marriage Law (I) and Article 27 of Interpretation of Marriage Law (II), only after divorce by agreement or during divorce proceedings can a lawsuit for damages be filed. Divorce is the pre-procedure of damages, and violation of the faithful agreement between husband and wife is of course damages, which should also be based on divorce.

Another view is that there is no explicit provision in the law, which should not be the reason for depriving the right of appeal if it is not accepted. The spouse who violates the duty of loyalty for the first time is more likely to turn over a new leaf. A separate lawsuit that recognizes the faithful agreement between husband and wife can punish the wrong party and save the marriage in crisis. Just because the claim for divorce damages must be based on the dissolution of marriage, we can't deny a separate lawsuit of husband and wife's faithful agreement.

People engaged in legal practice agree with the second opinion on this issue. Let's see what they say ~

Husband and wife loyalty agreement refers to the agreement reached between husband and wife before or after marriage. During the marriage relationship, if one party violates the faithful obligation of husband and wife, the offending party will pay part of the property to the other party or fulfill the agreement according to the agreement. Husband and wife loyalty agreement has the following characteristics:

1. Elements of a civil juristic act. Loyalty agreement between husband and wife is an effective civil legal act, which meets the requirements of Article 55 of the General Principles of Civil Law, has corresponding capacity for civil conduct, is true in meaning, and does not violate the mandatory provisions of laws and administrative regulations, public order and good customs.

2. It conforms to the legislative spirit of the Marriage Law. Article 4 of the Marriage Law stipulates that husband and wife should be faithful to each other and respect each other. No matter whether the duty of loyalty of husband and wife stipulated in this article is moral or legal, it is undeniable that the law regulates bigamy, cohabitation with others and other acts that violate the duty of loyalty of husband and wife. The content of realizing the loyalty agreement between husband and wife is only a means to save the marriage by punishing the wrong party.

3. The nature of the agreement is conditional. Article 19 of the Marriage Law stipulates that husband and wife may agree that the property acquired during the marriage relationship and the property before marriage belong to themselves, all or part of it, and part of it. It can be seen that China's marriage law recognizes the separate property system of husband and wife. The content of property payment agreed in the marital property agreement is based on the status relationship, and the breach clause of contract law is not applicable, but after the agreed conditions are fulfilled, the content of property payment will be transformed into the relationship of creditor's rights and debts.

To sum up, the faithful property agreement between husband and wife is based on the original feelings of husband and wife, and through private means such as signing an agreement, mutual restraint and setting responsibilities, when the agreed conditions are met, the trust, mutual respect, love and voluntary acceptance of punishment are further enhanced. Putting the property from the left pocket to the right pocket is an extension of the marital property system. Without suing for divorce, it is in line with the principle of autonomy of private law to ask the other party to pay the property according to the agreement, and it can also achieve the purpose of reminding and warning the wrong party and repairing the relationship between husband and wife. The right of civil action is the right of judicial relief granted by the state to the people. The right of action is a "bridge" connecting civil disputes and litigation procedures, with the aim of effectively relieving rights. The way to exercise the right of action is to exercise the right of prosecution. The content of the separate application for the performance of the loyalty agreement between husband and wife meets the prosecution conditions stipulated in Article 119 of the Civil Procedure Law. Moreover, the marriage loyalty agreement in this case was signed by both parties voluntarily, and there were no revocable or invalid situations such as coercion and fraud, and there was no violation of good customs. This is the embodiment of Article 4 of the Marriage Law that "husband and wife should be faithful to each other".

It can be seen that the characteristics of marriage loyalty agreement and the applicable object of civil litigation determine that marriage loyalty agreement can be prosecuted separately. Otherwise: on the one hand, it ignores the function of mutual influence and saving marriage. I didn't sue for divorce, but only asked to fulfill the loyalty agreement between husband and wife. It can be seen that Yu has not completely lost confidence in marriage, and his relationship with Tang has not completely broken down. Giving Tang the right of permanent residence in a house did not have a substantial impact on Tang's life. It's just a means to punish Tang's misconduct at the expense of property payment. The purpose of the lawsuit is to make Tang realize his mistake and influence the other party. It is more important to repair the damaged marriage relationship for the first time and maintain the husband-wife relationship for many years. On the other hand, it violates the freedom of divorce of the innocent party. In the absence of divorce, if forced divorce is taken as a prerequisite to undertake the obligations stipulated in the faithful agreement between husband and wife, it will inevitably lead to the parties resorting to divorce against their will to punish each other, which will make the relationship between husband and wife that could have been restored unable to get the proper relief, leading to the right relief and "breach of contract" punishment putting the cart before the horse. Denying their individual litigiousness is tantamount to laissez-faire and connivance of marital infidelity, which may lead people to lose confidence in marriage and trust in the law.