How to get divorce in China? Legal procedure for expat divorce.
Foreign-related marriage refers to the marriage between a citizen of a country and a foreigner (including stateless person), including foreign-related marriage and foreign-related divorce. In China, “foreign-related marriage” also refers to marriages between Chinese citizens and foreigners, mainland residents and Hong Kong residents, Macao residents, Taiwan residents and overseas Chinese. According to Chinese law, the law of the place where the marriage is concluded between Chinese citizens and foreigners shall apply, and the law of the place where the court with jurisdiction on the case shall apply to the divorce. Where the parties to a foreign-related marriage get married or get divorced within the territory of China, they must comply with the provisions of Chinese laws.
I. Ways to solve foreign-related divorce
According to the relevant provisions of China’s “Marriage Law”, there are two ways to divorce, when both parties reached consensus to divorce with no arguments on mutual property division, children custody and other related issues, the two parties may register the divorce at the marriage registration authority. Otherwise, the two parties has to get divorce by litigation procedures in the court.
In foreign-related divorce, whether the two parties are willing to divorce voluntary or not, it is better for the expat to get divorce through litigation procedures in the court. This is because, in some countries, only divorce with court judgement is recognized. In China, some courts may grant a divorce on the spot by summary procedure if both parties agree.
II. Property and custody disputes in foreign-related divorce
1. Methods for settling property disputes
The civil law of most countries in the world stipulates that the ownership of immovable property/real estate shall be governed by the laws of the locality of the immovable property. The following situations should be noted:
a. Based on this provision, property disputes involved in divorce may not be resolved at the same time. That is to say, if both parties deal with divorce, there are some immovable property is in other countries or regions, then in the divorce court, can only deal with the immovable property and movable property located in the divorce court, for the immovable property not located in the country of the divorce court, the two parties can only solve the immovable property dispute in the location of the immovable property.
b. Both parties have gone through divorce procedures in other countries, but the immovable property involved has not been divided and handled in China. If both parties cannot reach an agreement on the immovable property located in China and need to settle the dispute through court proceedings, both parties shall first apply to the intermediate people’s Court in the place where the applicant is located for recognition of the validity of the divorce between the two parties abroad, and then request the court in the place where the immovable property is located to settle the dispute through court proceedings.
2. methods for resolving disputes over child support
Chinese law stipulates that the law of the country that has the closest connection with the person to be supported shall apply. The support between parents and children, husband and wife and between other persons who have the relationship of support, the law of the country which has the closest contact with the person to be supported shall apply. The nationality, residence as well as the location of the property of supported, may be regarded as having the closest relationship with the person to be supported.
III. Other issues that need attention
1. If there is an agent ad litem in a divorce case, he/she shall still appear in court except for those who cannot express his/her will. If he/she is truly unable to appear in court due to special circumstances, he/she must submit written opinions to the court.
2. Expats, stateless persons, foreign enterprises and organizations who wish to appoint lawyers to represent them in litigation or responding to an action in the court must appoint licensed lawyers of People’s Republic of China.
If one party asks for divorce, the other party does not agree to, or the two parties cannot reach an agreement on the division of property after divorce and the raising of children, they should file a lawsuit to the court. According to China’s Civil Procedure Law, if big amount is involved, the case will fall into the jurisdiction of the intermediate people’s Court. If mediation by the court fails, divorce shall be granted. Since this case is a foreign-related civil case, the special provisions of the Civil Procedure Law on foreign-related civil procedures should be applied during the trial.
In addition, if a party does not reside in China, written opinions shall be submitted to the court. Written opinions as well as legal evidence sent from a foreign country shall be certified by a notary office of his/her home country and authenticated by the Chinese embassy or consulate in that country.
