How do a froeigner expat divorce in China?How to get a divorce in China?

According to the provisions of China's Marriage Law, Chinese citizens need to go to the marriage registration office where their household registration is located to handle divorce registration. And there are many foreigners in our country. What should foreigners do if they want to apply for divorce in our country? What are the special regulations for foreigners to handle divorce within China? 

This article sets out the applicable law and procedures for expats wishing to divorce in China. 

Legal analysis:

If a Chinese citizen marries a foreigner within the territory of China, Chinese law shall apply. If Chinese citizens marry foreigners outside of China, the laws of the corresponding country (region) shall apply. In the case of divorce between parties of different nationalities (including stateless persons), China adopts the principle of forum law, with the law of the country where the court accepting the divorce case is located as the applicable law. Divorce cases involving Chinese citizens as one party and foreigners as the other party are handled by Chinese courts, and Chinese law shall apply.

Legal basis:

Article 26 of the Law of the People's Republic of China on the Application of Law in Foreign Related Civil Relations: In case of divorce through agreement, the parties may choose to apply the law of one party's habitual residence or the law of the country of nationality. If the parties have not chosen, the law of their common habitual residence shall apply; If there is no common habitual residence, the law of the country of common nationality shall apply; If there is no common nationality, the law of the place where the institution handling divorce procedures is located shall apply.

Divorce between foreigners or between foreigners and Chinese people within the territory of  China shall be handled in accordance with the following regulations:

1.Regardless of whether the two parties voluntarily agree to divorce or if one party requests a divorce, all cases shall be handled in accordance with the litigation procedures. The parties to a divorce shall, in accordance with the provisions of the Civil Procedure Law, file a divorce lawsuit with the people's court with jurisdiction. If the defendant does not raise any objections to the jurisdiction of the people's court and responds with a defense, it shall be deemed to recognize the people's court as having jurisdiction.

2.According to Article 147 of the General Principles of the Civil Law, "Divorce shall be governed by the law of the place where the court accepting the case is located." After the Chinese people's court accepts a foreign-related divorce lawsuit, it shall use the provisions of China's Marriage Law and other relevant laws and regulations.

3.In cases of foreign-related divorce, both Chinese and foreign courts have jurisdiction. If one party brings a lawsuit to a foreign court and the other party brings a lawsuit to a Chinese court, the Chinese court may accept it. After judgment. If a foreign court applies or a party requests recognition and enforcement of a judgment or ruling made by a foreign court in this case, it shall not be granted; Except as otherwise provided in international treaties jointly participated in or signed by the two countries.

‘Irretrievable break-down of marriage’ is the principle which the Chinese court must adhere to when making the decision on divorce. Within the Chinese courts, one of the following circumstances should be used to support the assertion of ‘irretrievable breakdown of marriage’:

1.One party to the marriage has committed bigamous marriage;

2.Domestic violence, or maltreatment and desertion of one party to the marriage by another;

3.Bad habits of one spouse for example gambling or drug addiction, which remain persistent despite repeated warnings;

4.Separation of the parties for two full years caused by incompatibility;

5.Any other circumstances causing alienation of mutual affection between the parties.

In addition, a divorce shall be granted if one party to the marriage is declared to be missing and the other party files an action for divorce because of this.

In a summary, during the course of divorce proceeding, the party who is the applicant for divorce should provide enough evidence to prove that the marriage has broken down irretrievably.

While processing a divorce, the Chinese courts may also make orders concerning marital assets and arrangements for any children.

You may also want to know how long does expat divorce in China take? Under the Procedural Law of PRC, a domestic case that is settled using the summary procedure takes between 3 and 6 months. In international cases that may involve service of documents overseas, and collection of evidence overseas, the length of the divorce may be more. In addition, for cross-border family cases, the period within which a judgment can be appealed is 30 days, whereas for domestic cases it is 15 days.

How to get a support if you want to divorce in China?

If you are a foreigner expat living in China and you are considering divorcing or separating from your spouse or partner (husband/wife), you will be wondering where to begin and what law will apply to you. You may think that you need to divorce in the country in which you were married;Some expats consider returning to their home country for divorce, but some consider divorcing in China where they have been habitually residing for a long time as they consider it to be more convenient for them. This is not the case. If you or your husband/wife were born in China, you may be able to divorce through the China courts. If you contact us, one of our lawyers will telephone you without charge to give advice whether you can divorce in China.

If you have any legal issues regarding foreigners in China, or related legal provisions regarding foreigners working in China, you can contact our lawyer for consultation. Hotline: +86-400-057-3132 or +86-13530053568

Promise-U Law Firm of Guangdong was founded in 2002,now has about 500 qualified lawyers and rated the NO. 1 in Luohu District and among top 10 most best & famous law firms in Shenzhen,China.