I am not a divorce lawyer by expertise. However, I typically process a few foreign-related divorce proceedings each year, both to help those in need and to keep current with judicial practice. A client recently pointed out to me that there weren’t many useful online resources related to foreign-related divorce proceedings in China. Some of the available information was wrong or outdated, even on official government sites. Even some recently published books on China foreign-related divorce proceedings aren’t even up to the current standard of practice.
Ⅰ. WHAT CONSTITUTES “FOREIGN-RELATED”?
As far as Chinese family and marriage law is concerned, a divorce is “foreign-related” if it meets any one of the following criteria:
- You or your spouse is a A) Foreign passport holder, B) Citizen of Hong Kong, Macao, Taiwan, or C) Stateless individual.
- The marriage was registered outside of mainland China, even if both spouses are Chinese citizens.
- The divorce involves splitting marital property overseas, and/or children who hold foreign passport(s).
Note: Hong Kong, Macao and Taiwan are parts of China. They shall not, in the sense of international civil law, be regarded as foreign. Instead, it is a matter of jurisdiction.
Ⅱ. DO I HAVE TO GO TO COURT?
This is NOT correct:
All cases of divorce in China concerning a foreign-related marriage must be filed with the court.
You may get a prompt divorce at the local Civil Affairs Bureau (“the bureau”), provided that:
- The marriage was registered at the bureau;
- The request was made to the same bureau; and
- Spouses agreed upon amicable terms, i.e. how to spilt assets and custody of children.
If both spouses are foreign passport holders, you may be told that you can’t get a speedy divorce in this way. But that’s not necessarily the case today, especially in big international cities like Shanghai. Check if you meet all of the requirements as listed above, and if you can meet each of those requirements, then you are good to go.
However, during the process (before you get the divorce paper), it often happens that one spouse changes their mind, or an agreement isn’t reached on how to split assets and/or custody of children. Therefore, either spouse may bring up a civil litigation for divorce with the People’s Court.
Ⅱ. DIVORCE – CIVIL LITIGATION
- 1. Should I hire a Chinese lawyer? Is it necessary? Can I have my foreign lawyer friend represent me in People’s Court?
You should avoid representing yourself in any court, even in your home country, given the complexity of litigation. Moreover, there is obstacle of bi-lingual communication. Judges will not be tolerant in court of anyone who cannot be understood, and will order you to appoint a translator. Additionally, foreign lawyers, while they can provide consultation, are not allowed to represent anyone in People’s Court in China. Although, without a legal background and real court experiences in China, how can you make sure you won’t be misinformed?
You need a licensed Chinese lawyer with court experience to help you in filing papers, following due processes and arguing for your best interest. Preferably, someone who can communicate with you directly rather than through a translator.
Before you contacting a Chinese lawyer, you need to do some preparation.
- 2.What should I prepare?
Each case is different in terms of preparation.
At your preliminary consultation with your lawyer, you’d most likely be asked following basic questions:
- Are you two still sharing the same household? If not, when did you live separately from each other? Have you been living separately for more than one year?
- Do you have any kids? Do you have any shared property?
- Have you signed any prenuptial agreement on the property?
These factors may decide if you could or could not get a divorce through the court. For example, you probably have to prove to the court that you and your spouse separated and haven’t shared the same household over one year. Once your lawyer gets involved, he/she will help you prepare for the most important part of filing litigation for a divorce – evidences. You don’t have to, and most likely you are not able to, do it by yourself. You want a divorce, but just need someone to help you go though it.
- 3. How to sign power-of-attorney (POA)
As a foreigner, the easiest way to sign a power-of-attorney that is acceptable to People’s Court is to just bring your passport and sign it in front of a case registration clerk and/or a judge.
If you are unable to do the above, but you still would stay or come to China for short time, the next easiest way is to bring your passport to a notary office with your lawyer, and have the POA notarised in mainland China.
If the above two options are not possible, you need to have a POA notarised and certified by the Chinese embassy.
- 4. Documentation
- a. Marriage certificate;
- b. Passport and/or ID card of spouses;
- c. Residence permit, work permit, residence registration form or a statement from your residence committee to prove that yo have resided in the address over one year;
- d. Birthday certificate of the children; and
- f. Ownership certificate of property.
The above is a general summary of documents needed for filing, i.e. registering a divorce case with People’s Court. Local courts have their specific requirements regarding how those documents need to be prepared.
Other frequently questions: Can I file for divorce even if my spouse is not in China? How about if he/she left China permanently during the process? … Not a problem, for each situation, procedures may be changed a little bit. You are highly advised to consult with an experienced Chinese lawyer for a preliminary review.