How To Recognize and Enforce a Foreign Divorce Judgment?
In today’s globalized world, cross-border marriages and divorces are common, but a foreign divorce decree isn’t automatically recognized in China. For example, if a couple marries in China and divorces in the U.S., the U.S. decree isn’t valid in China until acknowledged and enforced by a Chinese court. Similarly, a divorce finalized in China must be recognized and enforced by the relevant foreign court to be effective in that country.
Not completing the process of recognizing a foreign divorce decree in China can result in various legal issues and risks. For instance.
Risk of property division: If a couple divorces in a foreign country and one party acquires new property in China, that property could be subject to division. Under Chinese law, property obtained during the marriage is considered communal, and without formal recognition of the foreign divorce, this rule still applies.
Risk of bigamy: If a person divorces in a foreign country and then remarries in China without formally recognizing the foreign divorce decree, they risk committing bigamy. Bigamy is a criminal offense under Chinese law and can lead to criminal charges.
This article will guide you through the process of applying for recognition and enforcement of a foreign divorce decree in China, as well as the steps to apply for recognition and enforcement of a Chinese divorce decree in another country.
1. How to Recognize and Enforce a Foreign Divorce Judgment in China?
(1) Which foreign divorce judgment can be recognized and enforced by Chinese courts?
To seek recognition and enforcement of a foreign divorce decree in China, at least one of the parties involved, whether the applicant or the respondent, must be a Chinese citizen.
(2) Who can apply for recognition and enforcement of foreign divorce judgment in Chinese courts?
Both the parties involved in the divorce and the foreign court that issued the decree are eligible to apply for recognition and enforcement of foreign divorce judgments in Chinese courts.
(3) Which court has jurisdiction?
The application must be filed with the intermediate people’s court located in the applicant’s usual place of residence.
(4) Inadmissibility in Chinese Courts
If a court has already accepted a divorce lawsuit, and one of the plaintiffs subsequently changes their request to seek recognition of the foreign court’s divorce judgment, or if the defendant files a new application for the recognition of the foreign court’s divorce judgment, the application will not be accepted.
(5) What documents are needed for the application for recognition and enforcement?
(i) Application Letter:
The application letter must include the following details:
the applicant’s name, gender, age, place of employment, and address; the name of the foreign court that issued the judgment, the judgment’s outcome, and the date of the judgment; the circumstances under which the applicant was summoned and responded to the appeal; the reasons for the application and the specific request; as well as any other relevant information.
(ii) Photocopies of passports or identity documents of both the applicant and the respondent;
(iii) Original Divorce Decree and Notarized Translation;
(iv) Documents Proving the Validity of the Foreign Divorce Decree with Notarization and Legalization
(6) What is the time frame for the Court’s review?
Generally, upon receiving an application, the court must initiate the case within seven days if the application meets the admissibility criteria. If the application does not meet the criteria, the court must notify the applicant of its inadmissibility within seven days, along with the reasons for this decision.
However, the law does not specify a time limit for the court to issue a ruling on the recognition of a foreign divorce decree or to reject the application once it has been accepted.
(7) How do Chinese courts decide on recognizing and enforcing foreign divorce decrees?
(i) Four reasons why Chinese courts are obligated not to recognize and enforce divorce decrees from foreign courts:
① The foreign court’s judgment has not yet become legally effective.
② The foreign court that issued the judgment lacked jurisdiction over the case.
③ The foreign judgment was made without the defendant being present and without a proper summons.
④ The divorce case between the parties is being heard or has already been decided by a Chinese court, or a divorce judgment from a third country has been recognized by a Chinese court.
(ii) Legal grounds for Chinese courts to recognize and enforce foreign court divorce judgments
Chinese courts will decide to recognize the validity of foreign divorce decrees as long as they do not contravene fundamental principles of Chinese law or harm national sovereignty, security, or public interest.
The review criteria are:
(a) the provisions of international treaties between the two countries; or
(b) reciprocal relations, meaning that if one country recognizes the validity of Chinese divorce decrees, China will also recognize the validity of divorce decrees from that country.
(8) Do Chinese courts recognize and enforce foreign divorce decrees in full?
No. Chinese courts only recognize the aspects of the foreign judgment related to the personal relationship between the parties, such as the marital status and whether a divorce has been granted. Matters related to property division and child custody still require separate lawsuits within China to be addressed and confirmed.
(9) Can a decision by a Chinese court regarding the recognition and enforcement of a foreign divorce decree be appealed?
There is no appeal, and upon service, it becomes legally effective.
(10) Court Fees
The court fee will be RMB 100.
(11) What are the remedies for inadmissibility and rejection?
If the court rejects the applicant’s application or dismisses it, the applicant cannot submit a new application. However, they can pursue a separate divorce lawsuit in a people’s court.
2. How to Recognize and Enforce a Chinese Divorce Judgment Abroad?
The recognition and enforcement of Chinese court judgments in foreign countries can be accomplished based on the following methods:
(1) Based on bilateral mutual legal assistance agreements between the two countries.
According to the Summary Table of Mutual Legal Assistance Agreements Signed by China with Other Countries, China has established bilateral agreements on mutual legal assistance in civil or commercial matters with 39 countries, of which 38 are currently in force. Among these 38 agreements, except for those with Belgium, Singapore, South Korea, and Thailand—which do not cover the recognition and enforcement of court rulings—the remaining 34 agreements include provisions for mutual recognition and enforcement of court decisions.
(2) Based on reciprocal relations between the countries and the applicable provisions in the domestic laws of the requested country.
If there are no bilateral agreements between China and a foreign country, a party seeking to recognize and enforce a Chinese court judgment in that foreign country must follow the local laws of that country. Typically, these laws are based on principles of judicial comity or reciprocity, and are shaped by the judicial history and practices of the country in question.
For instance, since there is no bilateral agreement on judicial assistance in civil and commercial matters between the United States and China, the recognition and enforcement of Chinese court decisions in the United States must be carried out according to U.S. domestic law.
In the United States, the principles of judicial comity and the recognition of foreign money judgments are outlined in the Uniform Act on the Recognition of Foreign Money Judgments, created by the U.S. Commission on Uniform State Laws. This Act has been adopted by over 30 states, each with its own judicial system and state laws. States that have adopted the Uniform Act can use it to apply for the recognition and enforcement of Chinese court judgments. For states that have not adopted this Uniform Act, they rely on U.S. case law, which generally upholds the principle of reciprocity.
Feel free to contact us if you need more information.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
