Cross-border marriages have become increasingly common. When a marriage breaks down, however, obtaining a divorce can be more complicated if one spouse is a foreign national, lives overseas, the marriage was registered outside China, or the couple owns assets in different countries.

One of the questions we are frequently asked is: Can I get divorced in China if I am currently living abroad and cannot easily return?

The answer depends on how and where the marriage was registered, where each spouse currently lives, and whether the divorce is by agreement or through court proceedings.

1. What Is a Cross-Border or Foreign-Related Marriage?

Under Chinese law, a civil relationship may be treated as foreign-related where, for example, one or both parties are foreign nationals, one or both parties have their habitual residence outside China, the relevant property is located outside China, or the legal facts giving rise to or changing the relationship occurred outside China.

In the context of divorce, common cross-border situations include:

• one spouse being a foreign national;

• one spouse living or habitually residing outside China;

• the marriage having been registered outside China;

• the spouses owning property outside China; or

• issues involving Hong Kong, Macao or Taiwan that require special cross-border procedures.

The existence of a foreign element may affect jurisdiction, document requirements, service of court papers, recognition of judgments and the treatment of overseas assets.
 

2. Two Ways to Divorce in China

There are generally two routes: divorce by agreement and divorce through court proceedings.

Divorce by Agreement

If both spouses agree to divorce and have reached agreement on child custody, property division and debts, they may be able to apply for divorce registration before a Chinese marriage registration authority.

Under Articles 1076 and 1077 of the PRC Civil Code, both spouses must personally apply for divorce registration. There is also a statutory 30-day cooling-off period. After that period expires, both spouses must again personally apply for issuance of the divorce certificate within the following 30 days.

The revised Marriage Registration Regulations, effective from 10 May 2025, likewise require the parties to apply in person. Importantly, the marriage registration authority will not accept an application for divorce registration if the marriage was not originally registered in Mainland China.

Therefore, divorce registration in Mainland China will generally not be available where:

one spouse is abroad and cannot return to complete the required procedures; or the marriage itself was registered outside Mainland China.

In those situations, court proceedings may be the more appropriate route.

Divorce Through the Courts

If the spouses cannot use divorce registration, or if they cannot agree on the divorce, children, property or debts, either spouse may consider filing divorce proceedings with a court.

Article 1079 of the PRC Civil Code allows one spouse to bring a divorce action before a People's Court.

For a cross-border divorce, however, the first question is not simply whether the parties want a divorce. It is:

Does a Chinese court have jurisdiction, and if so, which Chinese court should hear the case?
 

3. What If One Spouse Is in China and the Other Is Abroad?

For Chinese citizens, there is an important special jurisdiction rule.

Where one Chinese citizen lives abroad and the other lives in China, the People's Court at the domicile of the spouse living in China has jurisdiction over the divorce action, regardless of which spouse files the case.

In other words, it is not always necessary to follow the ordinary rule that a lawsuit must be filed where the defendant lives.

For example, if the wife lives in China and the husband lives overseas, the wife may generally bring the divorce action before the court at her own domicile. Conversely, if the husband living overseas wishes to file the divorce action in China, the court at the wife's domicile in China may also have jurisdiction.

This special rule expressly concerns Chinese citizens. Where one or both spouses are foreign nationals, jurisdiction should be analysed separately based on nationality, domicile or habitual residence, the place of marriage and other connections with China.
 

4. What If Both Spouses Are Abroad?

The answer depends on whether the parties have settled abroad and on the circumstances of the marriage.

Where both Chinese citizens are abroad but have not settled permanently abroad, the Supreme People's Court's judicial interpretation provides that a divorce action may be brought before the People's Court at the original domicile of either spouse.

Where both spouses have settled abroad, jurisdiction becomes more complicated.

For example, Chinese courts may have jurisdiction in certain circumstances where Chinese citizens married in China but the court in their country of residence refuses to hear the divorce because it considers the court at the place of marriage to have jurisdiction. Similar special rules apply to Chinese citizens who married abroad where the foreign court refuses jurisdiction on the basis that the divorce should be dealt with by the court of their nationality.

Accordingly, it is not accurate to assume that a couple living permanently abroad can always simply file a divorce case in China. Jurisdiction should be examined on a case-by-case basis.

Another option may be to obtain a divorce judgment abroad. If the foreign divorce judgment subsequently needs to be relied upon in China, an application for recognition by a Chinese court may be required. China has specific judicial rules governing applications for recognition of foreign divorce judgments.
 

5. If I Am Abroad, Do I Have to Return to China for the Court Case?

Not necessarily.

Living outside China does not automatically prevent a person from participating in Chinese divorce proceedings.

A party may appoint a Chinese lawyer to handle the proceedings. However, Chinese law generally expects the parties themselves to participate in divorce cases even where lawyers have been appointed. If a party is genuinely unable to appear because of special circumstances, that party must submit a written opinion to the court.

Chinese courts may also conduct certain litigation procedures online. The Supreme People's Court's Online Litigation Rules allow filing, mediation, evidence exchange, hearings and other procedures to be conducted through online platforms where the applicable conditions are satisfied. Whether an online hearing will be permitted in a particular divorce case remains subject to the court's decision.

Therefore, in appropriate cases, a spouse living overseas may be able to complete much or even all of the litigation process without physically returning to China. This should, however, be confirmed with the court handling the particular case rather than assumed in advance.
 

6. Documents Signed or Issued Overseas

Cross-border divorce cases usually involve more documentation than ordinary domestic divorce cases.

Foreign documents submitted to a Chinese court may need notarisation and appropriate certification procedures. Since the Hague Apostille Convention entered into force for China on 7 November 2023, public documents from another Convention country generally use an Apostille instead of traditional Chinese consular legalisation. Documents from non-Convention countries may still require consular authentication.

Foreign-language documents submitted in Chinese court proceedings must generally be accompanied by Chinese translations.

A foreign party appointing a lawyer in China from overseas may also need to complete the required formalities for the power of attorney. For a foreign national without a domicile in China, the PRC Civil Procedure Law expressly requires the overseas power of attorney to go through notarisation and consular authentication or the relevant procedure provided by an applicable international treaty.
 

7. Why Are Cross-Border Divorces More Complicated?

In practice, cross-border divorce cases often involve issues that do not arise in an ordinary domestic divorce.

Documents may have to be notarised, apostilled or authenticated. Court documents may need to be served on a spouse in another country, which can substantially extend the proceedings. Foreign-language evidence must normally be translated into Chinese. Overseas property may also raise difficult questions concerning jurisdiction, applicable law, valuation and enforcement.

In some cases, obtaining the divorce itself is relatively straightforward, while resolving overseas property, child custody or enforcement issues is considerably more complicated.

For that reason, before starting a cross-border divorce, it is usually important to determine three things first: which country has jurisdiction, which procedure should be used, and where the resulting divorce judgment or agreement will ultimately need to be recognised or enforced.
 

Disclaimer:
This article is for general information only and does not constitute legal advice.
For more information, please contact David Gao, an international family lawyer in Beijing, China.