Marital agreements: when ‘I do’ means ‘I don’t’

By Gao Xing, Boss & Young

The Marriage Law of the People’s Republic of China was initially promulgated in 1950. It was the first legislation since the founding of the PRC in 1949, even earlier than the Constitution Law, which was enacted in 1954. The 1950 Marriage Law ceased to take legal effect after the National People’s Congress reissued the Marriage Law of the People’s Republic of China in 1980, which came into force on 1 January 1981 and was revised in 2001.

Gao XingPartner and attorney-at-lawBoss & Young
Gao Xing
Partner and attorney-at-law
Boss & Young

Marriage laws deal with husband-wife relationships and parent-child relationships such as divorce and paternity, which are established to help people solve the legal aspects of family relationship issues. This article discusses several agreements concerning the marriage itself or the properties jointly owned by husband and wife.

Loyalty agreement. One of the general principles stipulated in the PRC Marriage Law is that the husband and wife must be loyal to each other, emotionally and physically. Let us think about a scenario where a wife finds out about her husband’s adultery. The errant husband refuses to give her a divorce and in order to sustain the marriage he signs an agreement in which he agrees to surrender his right to certain community property and promises to indemnify the wife if he commits adultery again. We call this kind of agreement a loyalty agreement.

It sounds reasonable, but in the view of many local courts, e.g., courts in Shanghai, such a loyalty agreement is unenforceable as mutual loyalty between spouses is often regarded as a moral rather than a legal duty. Other reasons such as the lack of certainty in contractual terms and the unfaithful spouse’s rights being substantially prejudiced, may also cause the agreement to be unenforceable.

Courts in other areas of China take a different view. There are precedents that claim for compensation based on a loyalty agreement that was supported by courts.

So the validity and enforceability of a loyalty agreement is unclear and largely depends on the local court’s view over the matter, and how the agreement is drafted.

Divide common property in a divorce agreement. A common scene we see in some TV series is that a husband asks the wife to sign a divorce agreement by which the jointly owned property is divided. Fortunately, in reality, a divorce agreement with property division clauses can only take legal effect after the couple actually gets divorced at the marriage registration office, or before a people’s court.

Although the divorce agreement may represent a genuine intention by the couple when they sign it, according to the judicial interpretation, i.e., the third release of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Marriage Law, where parties reach a property division agreement under the condition of divorce by registration, or by consent through a people’s court, but either one pulls back in the divorce action, the people’s court must deem such agreement of no effect and must rule to divide their joint properties based on law and the merits of the case.

House property gifted in a marriage. Gifting, with the effect of transfer of legal title over a property, is common in marriages. However, an agreement entered into by the husband and wife for the purpose of gifting the other party any house property under his or her name may or may not
be enforceable.

First, it is a valid agreement unless the agreement fails to meet the general requirements for it to take legal effect, for example, a party is forced into the obligation. Second, the party who offers the gift is entitled to revoke it before title transfer, which may render the agreement unenforceable.

Such a right to revoke is provided in the judicial interpretation, article 6 of which states that if one party, before or during the marriage, agrees to gift his or her own house property to the other, and cancels his or her gift before going through the registration formalities of the change of the house property as a gift, and the other party requests a ruling for specific performance, the people’s court may handle the request in accordance with article 186 of the Contract Law, which allows the donator to rescind the donation before transfer of the rights to the donated property. Therefore, it is advisable that the husband or wife receiving a house property as a gift registers his or her ownership as soon as possible.

Gao Xing is a partner and attorney-at-law with Boss & Young in Shanghai


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