How to Divorce in China
Time:2023-02-21 11:21:24Source:Click:次
As an expat living in China, can I get divorce in China?
It depends.
If your spouse is a Chinese citizen (mixed couples), you can;
If your spouse is also an expat (expat couples), and you want to divorce in China, then at least one of you needs to live in the same district (or county) of a city in China for at least one year.
In this regards, the place of your marriage registration does not account much. For example, for expat couples that registered their marriage in China, the Chinese court will not accept their divorce case if both of them have left China.
Two channels for divorce in china
There are two channels for divorce in China: registration procedure and court procedure.
1. If the couples are both Chinese citizens, or at least one party is a Chinese citizen and their marriage is registered in China, and they have reached agreement on divorce including child custody, support and split of property, they may divorce by registration procedure.
2.Under the following circumstances, you have to go to the court for divorce:
a. either spouse does not agree to divorce;
b. There is dispute over the custody or support payment, or visitation;
c. There is dispute over split of community property;
d. One party is an expat and the marriage is not registered in mainland of China.
What's required to file a divorce case?
For an expat, before filing the divorce case, you need to know which court will accept the case. For a court having jurisdiction on your divorce case, at least one spouse needs to live in the same district for at least one year before filing for divorce.
Document needed:
- Passports and residential registration certificates issued by police authority
- Original marriage certificate (if not married in China, the certificates have to be notarized and certified by Chinese Embassy or consulate.
- Other documents such as child birth certificate, property certificate etc.
Will the court grant divorce?
The criteria for divorce under Chinese law is lost of “mutual affection” and one of the following circumstances could be used as evidence for lost of “mutual affection” :
- spouses have lived separately for more than two years
- a spouse has entered into another marriage or lived with a third party
- domestic abuse or mistreatment
- a spouse is addicted to gambling or drugs
How long does a divorce proceeding take in China?
It depends. If the couples agree to everything before filing the case, it is actually a 'divorce by agreement' and may only take a few weeks.
However, for a contested divorce, the court proceeding may take long time depending on the complexity of the case. Some cases last a few months and others may last more than a year.
How to split the real property outside China
For the community property commonly owned by husband and wife, the real property (apartments, houses or land) often takes the most important proportion. In some of the cases, the real property is located both in China and overseas. So when Chinese courts handle such divorces, how will they deal with the real properties located in various countries?
First, under Article 27 of the Law on Applicable Laws in Civil Foreign-related Relationships of China, Chinese laws will govern the divorce, children custody issues and split of movable properties. When it comes to real property, the court practice may vary. For the real properties located in China, the court applies the Chinese law to make a judgement. But for the real properties located outside China, some courts apply Article 27 of the Law on Applicable Laws in Civil Foreign-related Relationships of China and made judgment on the real property outside China under Chinese laws. Other courts took a different view and divided the real property outside China from the real property in China and decided that the real property outside China shall be governed by the laws of the state where it is located and refuse to make court judgments on such property.
Two causes are behind this approach.
First, under Chinese civil procedure laws, a party which claims to split the property outside China needs to provide evidence regarding the existence and value of the property. Such evidence shall be notarized locally and certified by Chinese Embassy or consulate. Not all such evidence could go through such complex procedure.
Second, even if the Chinese court makes judgement on the real property outside China, it still faces another obstacle to enforce the judgement in the state where the real property is located. Enforcing another country’s court judgement involves sovereignty issues and without a judicial cooperation treaty between the countries, a country is often reluctant to enforce another country’s court judgement unless there is a reciprocal basis.
Will the Chinese divorce judgment be recognized in the home country?
Usually yes. Each country has its own procedures for recognition of another country’s divorce court judgment. Some countries don't even require additional steps, others might require notarization/certification procedure.
For more information, you may contact David Gao:
Email: gaohexin@163.com
Tel: 86 13611158067
