International Divorces in China (I): Methods and Authority

With the increase in foreigners living in China, divorce cases among international couples are also growing in many cases, whether between two foreign nationals or a mix of Chinese and foreign individuals. Understanding these cases requires knowledge of the complex laws governing foreign-related divorces in China. This article provides an overview of the relevant Chinese laws and explains the two main divorce options: mutual consent and divorce litigation.

1. How To Apply for Divorce case in China

   
   

(1)  Methods of Divorce

Divorce in China generally falls into two categories: mutual consent and litigation. In a mutual consent divorce, both spouses voluntarily agree to end their marriage, which is processed through the marriage registration authority. In contrast, a litigation divorce occurs when one or both partners seek a court's intervention to initiate the divorce process. 

(2) What are the advantages of divorce by mutual agreement?

Mutual agreement divorce provides a faster and more straightforward process compared to litigation. When both parties agree on the divorce, they can go directly to the Civil Affairs Bureau, the authority responsible for marriage registration in China, to begin the divorce process.

 After a required 30-day cooling-off period from the date of application, if both parties are still committed to the divorce, they can go back to the Civil Affairs Bureau to receive their official divorce certificate.

(3) Can a foreigner apply for divorced by mutual consent in china?

If both spouses are legally married in China, they can seek a mutual consent divorce through the Civil Affairs Bureau. However, if both parties are foreigners and their marriage was not registered in China, divorce must be pursued through litigation.

(4) Under what circumstances is a litigated divorce necessary?

If both spouses are legally married in China, they can seek a mutual consent divorce through the Civil Affairs Bureau. However, if both parties are foreigners and their marriage was not registered in China, divorce must be pursued through litigation.

(5) If a divorce is obtained through litigation, under what circumstances will the court grant a divorce?

In Chinese legal proceedings, when one spouse files for divorce, the court usually does not approve the divorce immediately. However, the court will grant it if certain conditions are met:

i) One spouse is married to more than one person or cohabits with someone else while still married.

ii) Involvement in domestic violence or neglect of family members.

iii) A history of repeated gambling or drug abuse.

iv) A two-year separation due to irreconcilable differences.

v) Other factors that have caused the breakdown of the marriage.

(6) What should I do if the court decides not to grant a divorce?

If the court denies the divorce in the initial case, a second petition can be submitted six months after the judgment becomes effective. If the spouses remain separated for one year following the first judgment, and one spouse files for divorce again, the court is required to grant the divorce.

(7) How long does it normally take to file an application for divorce?

If the court denies the divorce in the initial case, a second petition can be submitted six months after the judgment becomes effective. If the spouses remain separated for one year following the first judgment, and one spouse files for divorce again, the court is required to grant the divorce.

2. Determining authority in Foreign Divorce Matters.

Determining authority in international divorce cases involves identifying which court has the authority to handle the matter. For couples with international ties, this usually depends on the domicile or habitual residence of the parties. We have outlined a framework to address jurisdiction issues for various scenarios that may arise.

Scenario 1：Chinese + Foreigners

(1) If the marriage took place in China, and both parties settled abroad.

Authority is primarily granted to the courts in the country where the parties currently reside.

If the courts in the country of residence decline to handle the divorce and determine that the case should be heard in the location where the marriage occurred or where one party last lived, then authority shifts to the court in that location.

(2) If the marriage took place in abroad and both parties settled abroad.

The authority will be in the country where the individual lives is given priority for the divorce case. 

If this court declines to hear the case, stating it falls under the authority of the individual's home country, then the court in the individual's original or last known residence in their home country will have authority.

(3) If the marriage took place in China or foreign countries, and one party has settled abroad the other one has settled in China

 The domicile of one of the domestic parties will have the authority, as stipulated in Article 23 of the Civil Procedure Law and elaborated in Article 15 of the Court Interpretation of the Civil Procedure Law.

(4) If the marriage took place in China or foreign countries, and both parties have settled in China

Then the defendant's place of domicile or habitual residence will have the authority (Article 22 of the Civil Procedure Law, “CPL”

Scenario 2：Foreigners + Foreigners

(1) if the marriage took place in foreign countries, and one party has settled abroad, the other party has settled in China.

The People's Court where one of the domestic parties resides has the authority.

(Articles 4 and 23 of the CPL)

(2) if the marriage took place in foreign countries, and both settled in China.

Authority is established based on the defendant's domicile or habitual residence, in accordance with the plaintiff-versus-respondent principle (Article 4,22 of the CPL)

(3) At what level of court do foreign divorce proceedings need to be brought?

The Basic People's Court holds jurisdiction over all foreign divorce cases.

(4) Can the parties to a foreign-related divorce choose by agreement to be subject to the authority of the Chinese courts?

In accordance with Article 277 of the updated Civil Procedure Law as of 2023, parties involved in foreign-related divorce proceedings have the option to select the jurisdiction of a Chinese court through written agreement, irrespective of their residence status or any affiliation with China.