[author]Chen Xiyi

[content]

The Construction and Application of Relational Jurisprudence:

Reconceptualization of Spousal Fidelity Agreements as an Example

*Author Chen Xiyi

Ph.D. in Law, Koguan School of Law, Shanghai Jiao Tong University; Research Assistant, China Institute for Socio-Legal Studies, Shanghai Jiao Tong University.

Abstract: There are three presuppositions underlying the dispute over legal validity of spousal fidelity agreements: the misalignment between the family relationship and the contractual model, the opposition between the weak ethical nature of property attributes and the strong ethical nature of personal attributes, and the mismatch between the legal compulsion and the emotional relationship. The three presuppositions are based on the tension of individual-family dualism, and the validity of fidelity agreements is undecided as a result. However, the relational jurisprudence breaks existing presuppositions. The relational contracts theory realizes the connection between marriage and the contract model, which provides a basis for fidelity agreements’ reference to the contract law. The emphasis on the relational structure reveals the common ethical nature behind personal and property relationships. The “ relational dispute resolution” focuses on the fact of the relationship itself, not just the text of the agreement. The judicial goal is to maintain virtuous relationships and discourage vicious relationships, not to regulate individuals. The premise of agreement validity is “ relational autonomy ” rather than “ individual expression of intent ”. The value basis is “relational goods” rather than “individual interests”. On that basis, fidelity agreements can be categorized as “normative agreement” and “ cumulative agreement”. And the litigation procedure and the mediation procedure are applied according to the dispute resolution requirements. Thus the judicial attitudes towards emotional relationships will neither be incompetent avoidance nor paternalistic intervention, but an effective response and feedback adjustment.

Key words: spousal fidelity agreements; relational jurisprudence; relational contract theory; relational approach

Table of Contents:

Introduction

1. Legal Divergences and Theoretical Debates on the Validity of Fidelity Agreements

2. Three Presuppositions and the Dualistic Framework Behind the Disputes

3. Theoretical Origins and Core Concepts of Relational Jurisprudence

4. Revisiting the Nature of Fidelity Agreements Under Relational Jurisprudence

5. Validity Determination of Fidelity Agreements Based on Relational Regulation

Conclusion: From Relational Jurisprudence to Relational Law

Introduction

Modern institutions, while promising a more autonomous and diverse way of life, must also respond to the accompanying challenges of weakened cohesion, diminished external control, and value disorientation. While advocating for less intervention, people simultaneously place higher expectations on public authority’s responsiveness and governance capabilities. As a result, the law often faces contradictory demands such as balancing freedom with unity, autonomy with intervention, and the endogenous order of society with the construction of state order. The contractualization of family relationships and its accompanying controversies vividly illustrate these tensions. Few areas, like the family, embody such a strong demand for privacy and autonomy while also carrying significant ethical and moral expectations. Current legal practices and theories oscillate between prioritizing the individual and prioritizing the family, necessitating exploration into how this dilemma can be resolved.

This article focuses on the nature and validity of spousal fidelity agreements (hereinafter referred to as “fidelity agreements”), which have become a phenomenon in practice. On the one hand, it seeks to address this issue pragmatically, and on the other hand, it uses this issue as a medium to present an analytical approach based on relational jurisprudence. Fidelity agreements refer to contracts where spouses commit to preserving the exclusivity of their marital relationship, typically stipulating behavioral obligations for both parties and the corresponding consequences of any breaches. The choice of fidelity agreements as a subject stems from two considerations: First, fidelity agreements reflect the legal duty of fidelity while also distinguishing themselves from existing legal provisions due to their contractual form, highlighting the tension between living law and state law. Second, compared to intergenerational relationships, modern society holds more diverse and complex views on the value foundation and interaction patterns of marital relationships. As a bond between two individuals without blood ties, the marital relationship is undeniably crucial in constructing social order and ensuring population reproduction. However, public authority often requires stronger justification for intervening in such relationships. Therefore, fidelity agreements serve as a vivid example to demonstrate how relational jurisprudence provides a significant advantage in addressing such challenging tensions, clarifying the value orientation, functional positioning, and regulatory approach of the law.

The first part of this article details the controversies surrounding the validity of fidelity agreements. The second part analyzes the three presuppositions and dualistic frameworks underpinning these disputes, arguing that these assumptions and frameworks themselves merit reflection as they construct the difficulties in determining validity. The third part introduces the concept of relational jurisprudence, while the fourth and fifth parts illustrate how this theoretical approach can be applied to analyze the nature and legal validity of fidelity agreements. This method offers a new interpretive and argumentative logic for existing legal provisions, aligning the operation of codified law more closely with institutional intentions, enhancing the coherence and persuasiveness of judicial reasoning, and addressing practical needs more comprehensively.

Although this article uses fidelity agreements and the family as its primary context, relational jurisprudence has the potential to transcend family-related issues. The concluding section explores examples such as data rights and frozen embryo rights to demonstrate the broad applicability of relational jurisprudence to both classic and emerging legal topics and offers prospects for its future development.

1. Legal Divergences and Theoretical Debates on the Validity of Fidelity Agreements

1.1 Challenges in Defining Fidelity Agreements Within the Legal Framework

First, fidelity agreements in practice expand the scope of fidelity obligations and their consequences for breach, which fall outside the scope of the Marriage and Family Section of the Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code). Article 1043(2) of the Civil Code provides only a principled and foundational stipulation on spousal fidelity obligations without specifying their precise meaning or the consequences of a breach. While Article 1042(2) prohibits bigamy and cohabitation with others for individuals with spouses, and Article 1091 grants the non-fault party the right to seek damages for divorce caused by severe misconduct such as bigamy or cohabitation, these provisions address only serious cases and are primarily applicable in divorce proceedings. By contrast, fidelity agreements in practice often involve both socially recognized family ethics and restrictions on severe misconduct, as well as individualized interactions between spouses. For example, in the Chen v. Wang et al. Property Rights Confirmation Dispute, violations of fidelity obligations extended beyond extramarital sexual conduct to include intimate behaviors beyond normal social interactions and frequent, unexplained communication with others of the opposite sex. Moreover, breaches of fidelity agreements may not necessarily lead to divorce, and disputes may arise during the continuation of the marriage.

The Civil Code explicitly recognizes three main types of agreements regarding identity relationships: (1) agreements establishing, altering, or terminating such relationships, such as agreements on designated guardianship or adoption; (2) agreements adjusting property and debt arrangements based on identity relationships, such as agreements on the division of marital property or inheritance and support; and (3) agreements distributing continuing rights and obligations after identity relationship changes, such as agreements on the custody of minor children between parents after divorce. However, fidelity agreements do not involve redefining relationship types or arranging property, but instead specify how identity-related obligations are performed during the continuation of the relationship, making them distinct from existing legal agreement types and highlighting their unique nature.

Second, fidelity agreements intersect with the applicability of the Contract Section of the Civil Code, revealing ambiguities in the law. Article 4 of the Supreme People’s Court’s judicial interpretation of the Marriage and Family Section of the Civil Code stipulates that cases filed solely based on Article 1043 of the Civil Code will not be accepted or will be dismissed. This demonstrates a cautious and restrained judicial approach to spousal fidelity obligations. However, the contractual form of fidelity agreements has brought this issue back into judicial focus. Previously, Article 2(2) of the Contract Law of the People’s Republic of China stated that “agreements related to identity relationships are subject to other applicable laws” without clarifying whether the Contract Law could be referenced. Comparatively, Article 464(2) of the Contract Section of the Civil Code provides that “agreements concerning identity relationships, such as marriage, adoption, and guardianship, are subject to applicable laws on those relationships; where there are no such provisions, the rules in this section may be referenced based on their nature.” While this provision remains ambiguous, it has opened channels for communication between the Marriage and Family Section and the Contract Section, encouraging judges to actively explore the validity of identity relationship agreements rather than avoiding them outright.

1.2 Contradictions in Judicial Rulings

Judicial practice involving fidelity agreements entered public attention in 2004 with the “empty bed fee case.” In this case, the couple agreed that the husband would pay a fee of 100 RMB per hour for being absent from home between midnight and 7 a.m. The court ultimately upheld the validity of this agreement, citing the authenticity of the parties’ intent, though debates over the case persist. Judicial attitudes towards fidelity agreements remain divided.

For example, judicial decisions from 2021 to 2022 show polarized stances: some rulings affirm the validity of fidelity agreements by respecting the parties’ genuine intent, while others reject their validity, citing the intermingling of personal and emotional factors that cannot be regulated by the Contract Section. Additionally, such agreements are often deemed moral constraints without legal enforceability and cannot serve as grounds for property distribution or child custody arrangements. In the Hu v. Zhang et al. Third-Party Revocation Case, the court initially ruled for the husband to compensate the wife based on a “letter of commitment.” However, the ruling was later overturned, with the court stating that fidelity agreements should be voluntarily fulfilled by the parties in good faith and that the court should not accept such cases. Alternatively, the court may rely on Article 1091 of the Marriage and Family Section to support damages for the non-fault party in severe cases.

However, the reasoning in such judgments is insufficient and contradictory. First, both proponents and opponents of the validity of fidelity agreements use “maintaining family ethics” to support their arguments, yet judicial reasoning lacks a coherent logic. Second, rejecting the legal validity of fidelity agreements solely because they involve emotional and moral factors fails to explain why similar agreements on child custody are recognized. Moreover, disputes involving marriage and family inevitably touch upon personal and emotional aspects. If such agreements are excluded from the Contract Section based on this reasoning, Article 464(2) of the Civil Code becomes ineffective. Third, whether affirming autonomy in positive rulings or emphasizing voluntary compliance in negative rulings, courts exhibit cautious attitudes, avoiding substantive evaluations of spousal relationships. However, when courts bypass disputes over fidelity agreements and rely on Article 1091 to support damages for the non-fault party, they must still assess fault based on facts and disregard agreed terms when determining compensation, thereby increasing judicial discretion. This contradicts the rationale that “the law should not excessively interfere in emotional and moral domains.” In summary, judicial reasoning could benefit from enhanced coherence and precision.

1.3 The Lack of a Common Ground in Theoretical Discussions

The prevailing view in academia is that the strength of ethical attributes is a crucial standard for determining whether identity relationship agreements can apply the rules of the Contract Section. The “ethical attributes issue” further evolves into the challenge of reconciling personal and property attributes within agreements. The “property agreement theory” and the “conditional property agreement theory” argue that fidelity agreements take identity relationships as a condition and property outcomes as a result. The “identity agreement theory” emphasizes that these agreements are fundamentally about fulfilling personal obligations, with property obligations being secondary and incidental. The “civil identity relationship with suspensive conditions theory” attempts to integrate personal and property attributes, arguing that the agreements take effect before any breach of fidelity obligations, rather than only upon the fulfillment of conditions. Fidelity agreements often involve both property and non-property obligations. Some studies differentiate between property-oriented and personal-oriented agreements based on the nature of the breach consequences--whether they entail property compensation or personal arrangements--and even further classify them into property transfer agreements, waiver-of-rights agreements, abuse agreements, and more detailed categories.

Corresponding to the issue of defining their nature, theories that emphasize property attributes tend to support applying the Contract Section to fidelity agreements but require compensation amounts to be proportional, particularly rejecting the validity of “clean break” clauses. Theories emphasizing personal attributes are internally divided. Some view fidelity agreements as “natural obligations” or “moral obligations,” thereby excluding their enforceability under the Contract Section. Others evaluate their validity based on contractual standards, arguing that agreements stipulating the termination of marriage or child custody as breach consequences are invalid for violating legal provisions regarding divorce and custody. Certain theories outright deny the possibility of reconciling personal and property attributes, contending that doing so would alienate marital relationships and contradict their intrinsic emotional and non-calculative nature, thus denying the validity of fidelity agreements.

While each theory is logically consistent in its own right, they lack meaningful dialogue with one another. Fidelity agreements often encompass both property and personal factors, and categorizing them under either side to determine their nature, even if conclusive, inherently lacks persuasiveness. The method of typology and scenario-based discussion holds practical value but fails to offer a guiding classification criterion for various situations. Moreover, the analysis often relies on fragmented reasoning such as “violating mandatory norms,” “contravening public order and morality,” or “damaging personal rights,” without providing a unified foundation for justification.

In summary, the legal validity of fidelity agreements arises from the interplay between the elasticity of legal interpretation, contradictions within judicial reasoning, and the limitations of existing theoretical tools. The discussion highlights four progressively critical points of contention. First, the nature of fidelity agreements is key to determining their validity, with the dichotomy between personal and property attributes serving as the basic analytical framework. Second, there is disagreement over the compatibility of personal attributes with contractual legal norms. Third, clearer standards are needed to determine which agreement contents align with moral and ethical principles. Fourth, whether fidelity agreements belong to the category of enforceable agreements remains unresolved. To address these issues, it is essential to identify their common root and adopt robust theoretical tools to provide an effective response.

2. Three Presuppositions and the Dualistic Framework Behind the Dispute

This section points out that the above disputes, while seemingly diverse, are commonly based on three presuppositions as the foundation of argumentation and constrained by the dualistic framework of individual-oriented and family-oriented values. Efforts are often made to choose between or balance the two. Reflecting on these presuppositions and frameworks can provide a comprehensive response to the controversies and pave the way for proposing more effective theoretical tools.

2.1 Three Presuppositions in Validity Analysis

First, there is a misalignment between family relationships and the contractual model. The linear progression from “status to contract” is questionable within marital relationships. While modern society no longer adheres to hierarchical status views, expectations regarding role-based ethics remain. The widely praised freedom of contract often raises concerns about potential self-interest, alienation, and opposition within family relationships. The law permits agreements to create and terminate relationships, such as adoption agreements or inheritance and support agreements, which break traditional role-based expectations and foster closer relational proximity among unrelated individuals. Similarly, spouses are allowed to arrange personal matters, such as child custody, through agreements during divorce. However, using agreements to regulate benefits and losses during the continuation of family relationships is often viewed as potentially damaging, further validating skepticism about the contractualization of family relationships.

Second, there is an opposition between the weak ethical nature of property attributes and the strong ethical nature of personal attributes. Despite the dual reality of fidelity agreements involving both personal and property attributes, judicial practice and many theories insist on distinguishing between the two. Some perspectives attempt to reconcile personal obligations with property compensation, acknowledging the role of property in upholding ethical order. They seek to ensure that agreements are sufficiently deterrent to protect marriages while avoiding the commodification of emotions and distortion of relationships. This reflects a profound skepticism about the quantifiability of personal relationships while recognizing property as an effective regulatory tool. However, property functions here through rational evaluation and cost-benefit trade-offs, which do not reflect its ethical nature but rather confirm its weak ethical status under existing theories. Current laws explicitly regulate marital property agreements, allowing spouses to determine property ownership, while personal relationship agreements remain in a legislative gray area. This presupposition is not only evident in the legal practice and existing research on fidelity agreements but also reflects a broader tendency within the legal system.

Third, there is a mismatch between legal compulsion and emotional relationships. Article 1043(2) of the Marriage and Family Section of the Civil Code stipulates that “spouses shall be mutually faithful” but denies the possibility of initiating lawsuits solely based on this clause, making it largely a non-compulsory, recommendatory provision. Recognizing the validity of fidelity agreements could reintroduce the issue of legal evaluation of spousal relationships. Proponents of validity often emphasize that enforceable content pertains to the consequences of breach, such as compensation, rather than the fidelity obligation itself. Opponents argue that fidelity agreements are meaningful only when performed voluntarily. Regardless of the perspective, both implicitly acknowledge the incompatibility between the spontaneity of emotional relationships and the compulsion of legal obligations.

2.2 The Dualistic Framework of Value Orientation

It follows that, although validity analysis appears objective and descriptive by focusing on the nature of fidelity agreements, it is fundamentally value-laden, largely depending on the analyst’s choice between individual autonomy and family ethics. This value orientation guides the reasoning, using the attributes of the agreement to substantiate conclusions. Some perspectives view fidelity agreements as a concretization and beneficial supplement to statutory fidelity obligations, aligning with the principles of autonomy while preserving family ethics. However, such views fail to robustly address the three presuppositions mentioned above, bypassing the core issues and oversimplifying the problem.

These presuppositions reflect an underlying dualism between individual-oriented and family-oriented values. The former emphasizes individual autonomy and the spontaneous order arising from the interplay of personal freedoms, while the latter stresses communal ethics, imposing constraints on members based on pre-established family structures and norms. While the aspiration to reconcile these two values is admirable, it is challenging to achieve. The multiplicity of demands pursued by the individual-oriented approach and the uniformity sought by the family-oriented approach clash, creating instability. The persistent debate over the validity of fidelity agreements stems from this unresolved dichotomy.

This dualistic framework generates three paired distinctions: contractual models vs. family relationships, property attributes vs. ethical attributes, and legal compulsion vs. spontaneous emotions. Judicial practices often establish automatic, interconnected relationships among these distinctions. Greater emphasis on autonomy leads to prioritizing the property attributes of agreements, using them to justify their contractual nature and enforceability. Conversely, greater focus on family ethics highlights the personal attributes of agreements and the internal constraints of family relationships, thereby denying their contractual validity.

Within this dichotomy, choosing either side is insufficiently convincing, and attempts to achieve balance within the existing framework often fail. The following sections propose “relational jurisprudence” as an alternative approach. It serves as a mediating tool between individual-oriented and family-oriented values, addressing the challenges of balancing these perspectives. It demonstrates that the three paired distinctions and their assumed correlations are unfounded. Relational jurisprudence offers a more coherent, clear, and persuasive standard for determining the validity of fidelity agreements.

3. Theoretical Origins and Core Concepts of Relational Jurisprudence

Relational jurisprudence refers to the fundamental analysis of legal concepts, the justification of legal values, and the reflection and construction of legal institutions based on an examination of “relationships.” Emerging in the late 1970s and continuing to develop, it primarily encompasses two theoretical strands: relational contract theory and the relational approach. Specifically, relational jurisprudence treats “relationships” as the basic unit of legal analysis, adopts “relational goods” as the fundamental principle of legal value, employs a “relational perspective” to integrate and connect different parts of the legal system, and defines “relational regulation” as the functional orientation of the law. Below, these two theoretical strands are outlined, followed by an elaboration on their core concepts.

3.1 Theoretical Origins of Relational Jurisprudence

Relational contract theory incorporates sociology into discussions of legal norms, re-examining the meaning of “contract (law)” and challenging classical and neo-classical contract law theories. A contract is not merely an aggregation of individual intentions but a set of diverse relationships between parties within a society, concerning the planning of future exchanges. This redefinition shifts the characterization of contracts from being independent and clearly defined to emphasizing their relational, dynamic, and open-ended nature.

Under Ian R. Macneil’s framework, the concept of “contract” extends beyond the domain of contract law, re-incorporating areas traditionally excluded from it, such as marriage and family, torts, property rights, and labor relations, providing a unified explanation and regulation. All contracts, by their nature, are embedded in relationships, and analyzing or interpreting them requires an understanding of key elements within these relationships. Judicial practices for such contracts should not only focus on contractual texts but also on the social facts of interaction between parties, revealing the intricate relational networks in which they are situated.

The relational approach more explicitly embodies the analytical pathway of relational jurisprudence. Although it initially centers on the rights and protections of women and children, its inquiry extends far beyond these topics to fundamentally challenge the deep logic and value basis of the entire legal system. The relational approach posits that rights are not simply the freedom to remain uninhibited or the pursuit of mutually independent or even antagonistic interests. Instead, “mutual dependence” is seen as a universal condition rather than a flaw in human nature. Individual autonomy should be understood within the framework of relational structures. Interactions within relationships enhance autonomy, enabling individuals to confront difficulties and withstand risks.

Similar to relational contract theory, the relational approach offers a new perspective for legal practice, arguing that judicial processes should focus on the underlying relational structures behind claims. Rather than prioritizing whose interests or what interests are to be protected, judicial efforts should aim to preserve and promote constructive relationships while deterring destructive ones.

3.2 Core Concepts of Relational Jurisprudence

Although the primary focus and problem consciousness of the two theoretical strands differ, both aspire to conceptualize the entire legal system through the lens of “relationships.” Their attention to social relationships beyond legal norms and their preference for values such as cooperation, solidarity, and mutual realization create numerous possibilities for dialogue and integration. Scholars have recognized the methodological compatibility between the two strands, suggesting that they can complement one another and be applied to studies on agreements in marriage and family law.

4. Revisiting the Nature of Fidelity Agreements Under Relational Jurisprudence

At this point, relational jurisprudence provides a subtle framework to address the controversies surrounding the validity of fidelity agreements. Individual-oriented and family-oriented values can be reconciled within a relationship-centered perspective: individuals are inherently embedded in specific relationships, and ongoing interpersonal interactions give rise to stable structures, such as the family as a community, which fosters widely recognized family ethics. These family ethics, in turn, set conditions for relational interactions without dictating them entirely. Individual agency allows relationships to evolve, leading to structural adjustments and iterative progression. This section explores the nature of fidelity agreements through the lens of relational jurisprudence, addressing the first two presuppositions, while the fifth section focuses on validity determination and judicial responses to reflect on the third presupposition.

4.1 Examining the Interaction Between Marital Relationships and Contractual Relationships Through Relational Contract Theory

The logic of separating marital and contractual relationships reflects a “hostile worlds” view, where any overlap between emotional and contractual relationships is seen as corrupting both. Emotional relationships are considered tainted by transactions, while contracts are seen as overly complicated by emotions, hindering efficiency. However, modern shifts in both family dynamics and market transactions have prompted these two domains to move from “hostility” toward “integration.”

On one hand, the starting and ending points of modern marriages lack certainty. First, the diversity of modern family models and the openness of societal perceptions make it impossible to subsume them under a fixed ethical framework. The individualized motivations and expressions of family construction represent a departure from the old order and a move toward a new phase, necessitating new approaches to fostering family cohesion. Second, families in modern society are not only sources of warmth but also of risk. In the absence of internal constraints within small, close-knit communities, interpersonal trust often depends on individual judgment, while risk prevention and regulation increasingly rely on institutional mechanisms. Even if spouses enter a marriage with idealistic hopes, the outcomes are inherently uncertain.

Fidelity agreements address these challenges in two ways. First, contracts offer flexibility and openness in structuring relationships while focusing on strengthening relational bonds without necessarily shortening or trivializing them. Fidelity agreements provide a foundation and platform for cooperation and sustained efforts between spouses, allowing for risk arrangements that preserve cooperative behavior despite uncertain outcomes. Second, they make otherwise private and invisible relationships more observable, enabling the legal system to function effectively. Concerns that formal contracts undermine the intangible emotional bonds of marriage conflate two aspects of fidelity: its motivational and evaluative attributes. Agreements specify external evaluative standards for spousal behavior but do not imply that fidelity is solely motivated by adherence to the agreement. Emotional motivations for fidelity can coexist with contractual stipulations.

On the other hand, the shift from “marketization of society” to “socialization of the market” has emphasized long-term cooperation to maximize benefits, utilizing existing trust relationships to foster transactions and leveraging extracontractual relationships to reinforce contractual performance. This characteristic has deep historical roots in China’s transactional markets. The family-centered particularist ethics, emphasizing substantive justice and a “righteousness-over-profit” orientation, suggests that commercial ethics alone cannot sustain modern social morality. Cooperative contracts in business practice exemplify this trend, focusing not on guaranteed outcomes but on collaborative actions, testing mutual capabilities over time, and increasing the sunk costs of terminating relationships. This model mirrors the operational mechanism of fidelity agreements and has been used by scholars to explore family relationships. Even in purely self-interested transactional relationships, a minimum level of trust and honest conduct is essential to initiate and sustain cooperation, underscoring the compatibility of marital and contractual relationships.

Relational contract theory distinguishes between discrete and relational contracts. Discrete contracts are short-term, precise, and involve limited engagement from parties, often marked by separateness and self-interest. They focus on the moment of contract formation, fixing all future matters and denying risk and change. In contrast, relational contracts are long-term, open-ended, and consider dynamic changes and risks. Their terms cannot be fully articulated or rigidly enforced at the outset, necessitating rules to manage uncertainties. While this dichotomy aids theoretical analysis, pure discrete contracts do not exist in reality. All contracts inherently operate within relationships, and distinctions are matters of degree rather than clear categories.

This spectrum from discrete to relational contracts accommodates diverse marital models. The contractual model does not inherently alienate marital relationships; its implications depend on how contracts are conceptualized and applied. Relational contract theory bridges the divide between the Marriage and Family Section and the Contract Section without erasing their distinctions. Compared to transactional relationships, marital relationships involve greater emotional investment and a higher degree of good faith obligations. Transactional relationships treat relationships as tools, focusing on resources within the relationship, while marital relationships treat the relationship itself as the goal, emphasizing adaptability to relational dynamics.

In conclusion, relational contract theory adopts a balanced meso-level perspective, encompassing both domains under a relational lens while remaining sensitive to their differences. This approach prevents the Contract Section from encroaching upon the Marriage and Family Section. Borrowing Hart’s distinction between core and peripheral cases, agreements concerning marital relationships should not be treated as core contractual cases but may still fall within the peripheral scope of the Contract Section. This aligns with legislative techniques of “reference application” and provides flexibility for judicial discretion.

4.2 Examining the Correspondence Between Property, Personal Attributes, and Ethics Through Relational Ownership

The dichotomy between property attributes and personal attributes, labeling them as weak and strong ethical attributes respectively, is the prevailing model for analyzing the nature of fidelity agreements. However, does this logic hold?

First, the distinction between personal and property attributes often relies on the textual content of agreements. This approach focuses solely on the subject matter of the agreement while neglecting the relationship itself. As a result, existing analyses often treat the relationship created by the agreement as a conduit for resource flows—emotional resources (such as loyalty and trust) and material resources (such as compensation for breach) flow through the conduit, while parties rationally evaluate their gains and make decisions to adhere to or breach the agreement. The principle of proportionality between personal obligations and compensation often emphasized by some theories stems from this view. However, agreements do more than serve as conduits for resource flows; they form relational structures. Property fundamentally regulates relationships between people, reflecting the impact individuals can have on one another. In other words, intimacy and property are not isolated domains—property arrangements directly reflect and shape the structure of marital relationships.

For instance, suppose one spouse consistently engages in infidelity while the other wishes to maintain the marriage. In this scenario, the latter may no longer expect fidelity from their partner but can leverage the fidelity agreement to impose constraints on the partner and sustain the marriage. Here, the parties’ intent is not to gain access to specific resources but to adjust the relationship. The purpose of fidelity agreements is neither to guarantee exclusive treatment nor to secure monetary compensation but to restructure the relationship as a strategic arrangement for its continuation. This becomes particularly significant in lawsuits seeking confirmation of the agreement’s validity. Such relational structures influence every aspect of spousal interaction, not just the content covered by the fidelity agreement. Consequently, the ethical evaluation of an agreement should not depend on whether its subject matter involves property or personal attributes but rather on the role it plays within the marital relationship. It should be grounded in the existing relational structure while aiming to shape the future relationship.

Second, the above analysis treats fidelity agreements as a strategic arrangement within relational structures, still operating under the “rational actor” assumption. However, this is only one facet of fidelity agreements. Such agreements also serve as expressions of emotions and attitudes, reflecting commitment to the marriage, the parties’ values, and self-perceptions. In other words, they address “how we value relationships” rather than “how much they cost,” thus highlighting their ethical dimensions. The notion that monetary elements inherently contaminate intimate relationships is overly simplistic. The specific attitudes and emotions conveyed by an agreement’s terms must be understood within the network of meanings that characterize the relationship. As Viviana Zelizer argues, while monetary transactions may appear similar externally, how they are labeled and understood reveals the nature of the underlying relationship.

For example, fidelity agreements signed after extramarital affairs often include property elements not as a “price” for fidelity but as an acknowledgment of fault and an expression of commitment to restoring the marriage. By contrast, in the “empty bed fee” case, where a husband agreed to compensate the wife for hours spent away from home, the agreement constructed a clear equivalence between time and money, distorting the relational dynamics. This explains the significant controversy surrounding the case and the growing criticism of the ruling.

In summary, Article 464(2) of the Contract Section of the Civil Code can be reinterpreted in light of the above discussion. The phrase “apply with reference to its nature” does not imply that only agreements with property attributes can invoke the Contract Section. Instead, the selective application and interpretation of contractual provisions must align with the relational ethics between the parties. Section 5 will elaborate on how relational ethics influence the application of validity provisions, such as genuine intention and good faith principles.

4.3 A Spectrum from Normative to Cumulative Agreement Types

Relational jurisprudence bridges the gap between family relationships and the contractual model, integrating property and personal attributes into relational structures and their networks of meaning, thereby revealing their shared ethical dimensions. As a result, the criteria for categorizing agreements shift from their textual focus on personal or property attributes to the patterns of relational interaction they reflect.

Fidelity agreements can be classified along a spectrum from normative agreements to cumulative agreements. Normative agreements are based on universal role ethics and societal norms, characterized by public and objective standards that make them more amenable to institutionalization as explicit rights and obligations. Cumulative agreements, on the other hand, arise from the specific relational history of the parties, forming personalized and experiential patterns of interaction. These agreements reflect the attitudes and perceptions of spouses toward each other and their marriage, such as affection, importance, and understanding, which were not present at the start of the relationship but emerged through continued interaction.

This classification cannot be determined solely by the textual content of agreements. Relational jurisprudence requires assessing agreements from the perspective of the parties, considering whether such agreements align with universal norms or reflect unique relational characteristics. Even widely recognized social norms operate on an internal perspective, grounded in accumulated relational experiences rather than externally imposed standards. Only by situating the agreement within the relational history of the parties can its nature be appropriately determined.

Compared to the dichotomy of personal vs. property attributes, the normative vs. cumulative framework better equips courts to adopt appropriate dispute resolution strategies. It enables the correction of toxic relationships while fostering constructive relational interactions. This will be further explored in subsequent sections.

5. Validity Determination of Fidelity Agreements Based on Relational Regulation

Fidelity agreements both reflect and influence relational structures, and legal practice evaluates their validity and resolves disputes in a way that regulates these relationships. With a revised understanding of the nature of such agreements, validity determination moves beyond simplistic frameworks of family vs. contract or personal vs. property attributes. Instead, it depends on understanding the specific relational structures at play. Therefore, addressing fidelity agreements through judicial discretion rather than explicit legislative codification is a prudent strategy, albeit one that presents greater challenges for judicial practice, requiring further guidance from relational jurisprudence.

5.1 Relational Dispute Resolution as Feedback Adjustment

Relational dispute resolution treats “relational regulation” as the functional purpose of judicial intervention. Courts, when addressing the validity of fidelity agreements, should neither dismiss cases on the grounds of emotional or personal factors nor evade substantive evaluation under the guise of autonomy, nor rigidly apply general principles to simplify complex facts. This approach has three key characteristics:

First, judges must focus not only on the textual content of the agreement but also on the relational facts themselves, ensuring that their rulings do not perpetuate or exacerbate toxic relational structures.

Second, the dispute resolution process is not external to the relationship but constitutes an adjustment and reconstruction of the relationship itself.

Third, judges are not unilateral regulators imposing final decisions but are embedded within the relational dynamics. Effective resolution requires judges to consider the perspectives of all parties and render judgments that can be justified among the parties. This approach aligns with ongoing reforms in family law adjudication methods and mechanisms, emphasizing a relational and regulatory perspective.

Additionally, judicial practice must consider not only the substantive issues of validity determination but also the compatibility of judicial methods with the nature of the dispute. This ensures that the interaction between judges and parties does not unduly harm the marital relationship. Combining adjudication with mediation addresses the challenge of applying mandatory judgments to emotional relationships.

For normative agreements, as they align with widely recognized social norms, judges can more easily grasp their relational structures. Adjudication is appropriate here, with an emphasis on judicial authority, particularly for correcting toxic relational structures.

For cumulative agreements, which reflect the unique characteristics of emotional relationships, mediation may be preferable when judges struggle to navigate the complexities of the relational dynamics. In this context, mediators are not arbitrators or moral educators indiscriminately critiquing the parties but facilitators of equal dialogue. They assist in organizing facts, clarifying key disputes, and proposing reference solutions through procedural arrangements.

Regardless of the method, judicial subjectivity is unavoidable. However, this subjectivity can help prevent frivolous litigation, reducing impulsive or trivial use of judicial mechanisms. Parties must recognize that invoking public authority introduces a third-party perspective on the agreement’s content and operation, which may exceed their expectations. Thus, if agreements are treated as “emotional games,” the consequences warrant careful consideration.

Relational dispute resolution does not advocate for a “judicial omnipotence” approach. While courts cannot resolve all relational crises, they can at least exercise prudent adjudication under the guidance of relational jurisprudence, ensuring that judicial intervention itself does not worsen relationships.

5.2 Genuine Intention Under Relational Autonomy

Autonomy of intention is a foundational principle for determining the validity of contracts, ensuring that agreements reflect the free arrangements of the parties. Proponents of fidelity agreements often invoke the presumption of rational adults to argue for their validity based on autonomy of intention. Opponents, however, contend that such agreements are often emotional or impulsive expressions, subject to flaws in rationality. According to the theory of “relational autonomy,” both views are partial. Relational autonomy refers to the capacity of individuals to establish, adjust, and develop specific relationships. This autonomy does not imply detachment from relationships; rather, it highlights the ability to foster constructive relationships and resist destructive ones through interaction. The concept includes the following:

First, autonomy is generated within relational interactions. As discussed earlier, mutual dependence and autonomy are not opposites. In fact, autonomy can be enhanced through mutual support, enabling individuals to establish meaningful relational networks. Traditional definitions of “autonomy” equate it with “freedom,” focusing on how individuals manage their own affairs and emphasizing abstract personal choice—a concept rooted in individualism. Relational autonomy, however, concerns how individuals treat one another, aligning more closely with the concept of “equality,” specifically relational equality. Spouses are inherently interdependent and rarely possess equal resources in all aspects, often complementing one another. This interdependence can evolve in two directions: toward “dependency and domination,” where one party’s relational structure limits their alternatives and exacerbates inequality, or toward “relational autonomy,” where both spouses develop the ability to construct, adjust, and sustain their relationship, fostering mutual respect.

Second, autonomy must be interpreted within the context of specific relationships, adopting a more dynamic and fluid understanding that transcends the rational actor assumption and considers emotional characteristics. In marital relationships, subtle influences on autonomy often arise, such as agreements made at the onset of a marriage when future uncertainties and emotional factors dominate or during emotional breakdowns under the threat of divorce. Such agreements are not easily categorized as fraud or coercion but reflect common dynamics in marriages. Invalidating agreements solely due to emotional factors would demand that deeply embedded parties negotiate with detached rationality, a contradictory standard given the emotional nature of marriage. Emotional decisions, such as those made for a spouse or children, are integral to autonomy in marital relationships. However, this does not mean agreements should be deemed valid in the absence of explicit fraud or coercion. Relational goods must also guide value judgments, as discussed further below.

Third, relational autonomy evaluates not only the relational structure at the time of agreement formation but also its ongoing development. In long-term contracts, mutual consent at the outset triggers agreement formation, but given the unpredictable nature of relationships, validity assessments must consider the agreement’s actual impact over time. The rule that “one’s initial choice determines future rights and obligations” is not a self-evident truth but a social construct designed to ensure transactional stability and respect individual preferences. However, in unpredictable and evolving marital relationships, initial judgments cannot fully encompass future circumstances. The “expectation interests” of the parties should be dynamically defined within the relationship, rather than fixed by the original agreement.

In summary, whether autonomy is respected in fidelity agreements depends not on abstract rights to contract, emotional intensity, or initial mutual consent but on the specific relational context at the time of formation and the agreement’s subsequent impact on the relationship structure.

5.3 Validity Determination Based on Relational Goods

Relational goods provide the value foundation for validity determinations, asking whether fidelity agreements promote and embody constructive relational patterns. Ian R. Macneil’s relational norms, including role integrity, preservation of the relationship, conflict harmonization, propriety of means, and supracontractual norms, offer a framework for focusing on relational facts and evaluating agreements.

First, the “role integrity norm” requires individuals to consistently perform their roles within specific relationships, aligning their behavior with relational ethics. Given individuals’ multiple social roles, this norm also necessitates role coordination. For instance, fidelity agreements that prohibit interaction with others of the opposite sex or impose loss of custody and visitation rights for breaches fail to balance spousal roles with broader social roles. Such agreements improperly prioritize spousal demands over other legitimate roles, violating the principle of role integrity.

Second, the “preservation of the relationship norm” incorporates a temporal dimension, emphasizing agreements that sustain long-term relationships. This norm encompasses not only the specific relationship at hand but also broader collective relationships. However, invoking collective interests to justify rigid and harmful expectations undermines the preservation of specific relationships. For example, claims that fidelity agreements inevitably erode public morality exaggerate their negative effects while disregarding agreements that genuinely support relational preservation.

Third, the “conflict harmonization norm” underscores the elasticity of relationships. Traditional contract theory prioritizes measurable and precise terms, aiming for strict adherence to predefined rights and obligations. However, in dynamic relationships, rigid agreements that lack flexibility can exacerbate conflicts. Agreements that enforce strict rules, such as exact homecoming times, may not violate legal or moral norms but fail to accommodate the fluidity of relationships, undermining their practical utility and validity.

Fourth, the “propriety of means norm,” akin to the principle of good faith, evaluates the processes of agreement formation and execution. Validity assessments must consider whether both parties fully communicated and whether one party maliciously undermined the agreement. For instance, if a party manipulates circumstances to provoke breaches for personal gain, such behavior violates the propriety of means norm, invalidating claims for compensation.

Fifth, the “supracontractual norm” transcends the contract itself, addressing universal norms rooted in human nature and developed through ongoing relational practices. Fidelity agreements that fail to align with external social norms cannot be validated. Evaluations must consider not only spousal ethics but also broader societal standards.

Role integrity and supracontractual norms align with normative agreements, while the preservation of the relationship, conflict harmonization, and propriety of means norms correspond to cumulative agreements. This connection bridges the gap between categorization and validity determinations, requiring courts to analyze relational structures alongside agreement content. Validity assessments shift from a binary framework to a nuanced examination of the relationship dynamics surrounding the agreement. Particularly in complex cases, repeated iterations of this analytical process may be necessary to refine judicial approaches and ensure appropriate resolutions. This approach, while complex, directly addresses the intricate nature of fidelity agreements and their embedded relationships.

Conclusion: From Relational Jurisprudence to Relational Law

The legal validity of fidelity agreements sits at the crossroads of multiple legal issues: the relationship between contract law and family law, the interplay of property and emotion, and the balance between private legal order and public interest. Relational jurisprudence offers a novel approach to these discussions. In contemporary society, interpersonal interactions are increasingly diverse, fluid, and extensive, while organizational spaces are loose, coupled, and open. This enhances the “butterfly effect” of any small fluctuation, making traditional cognitive tools (such as group structures, boundaries, and property) reliant on static rules to address dynamic changes often ineffective. The intricate variability and complexity of family relationships underscore the advantages of relational jurisprudence in bridging legal systems with experiential realities. Relational jurisprudence thus possesses the vitality to transcend family contexts and be applied broadly to diverse legal issues. Expanding its application across domains and layers of legal inquiry could lead to the development of a systematic “relational law,” built on relational thinking.

Relational law can be applied to the study of emerging rights. Take data rights and rights to frozen embryos as examples. The complexity of data sources, the replicability of content, and the high mobility of data create challenges in defining data boundaries. However, the focus of such discussions can shift from “whose interests should be protected” to “what kinds of relationships should be fostered.” Constructing relational orders may offer more practical value than rigidly determining ownership of data.

Similarly, traditional theories often treat frozen embryos as property to safeguard women’s autonomy over their bodies. However, analyzing this issue through the lens of property rights may inadvertently objectify women and children, contradicting the goal of promoting women’s autonomy. Viewing rights concerning frozen embryos as relational rights—centered on establishing a meaningful relationship with the embryos—can resolve these dilemmas. Beyond emerging issues, relational law can be applied to re-examining classical topics such as social security for vulnerable groups and intergenerational justice, offering a new adhesive for modern societal order.

China’s cultural emphasis on interpersonal connections and contextual ethics provides fertile ground for the articulation and implementation of relational law. However, caution must be exercised to prevent its distortion or oversimplification. The focus should remain on its potential to adjust relationships and establish normative values. Future developments of relational law require refinement along two dimensions: time and space. Should relational adjustments occur ex-ante or ex-post? To what extent do different types of relationships require relational dispute resolution? Should legal regulation emphasize constructing external relational environments or address internal relational dynamics directly? Answering these questions necessitates an interdisciplinary perspective, integrating relational sociology, relational ethics, and other fields to classify relationship types, conduct empirical studies, and perform normative analyses. These efforts aim to develop more nuanced legal frameworks that accommodate the complexity of relational interactions.

The original article was published in the Modern Law Science, Issue 4 2024, and is reposted from the WeChat official account “Modern Law Science.”