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
Get to Know Custody and Alimony of International Divorce in China
Divorce can be a complex and emotionally taxing process, especially for expatriates in China. Understanding the complexities of custody and alimony laws is crucial for ensuring a fair and smooth resolution. This article aims to provide expatriates with essential insights into the custody and alimony issues that may arise during a divorce in China, helping them navigate this challenging period with greater confidence and clarity.
Part 1. Who does custody of the child belong to after divorce ?
Chinese law prioritizes children’s welfare in custody decisions. Article 1058 of the Civil Code grants both parents equal rights and responsibilities for their upbringing. Custody arrangements consider factors like stability, care giving abilities, and the child’s preferences when applicable.
Here are key circumstances where custody may be granted to either parent.
(1) Who gets custody if the children are under the age of two?
If children are under two, the mother typically has custody. However, the People’s Court may grant custody to the father if the mother is in specific circumstances such as:
(i) If the mother is suffering from long-term contagious disease or serious illness making it unsuitable for the children to live with her.
(ii) If the mother is able but unwilling to fulfill her support obligations, and the father requests custody.
(iii) If other factors, such as economic or living environment issues, make it unsuitable for the child to live with the mother then the court may grant guardianship to the father.
Additionally, the courts often favor the father’s custody of children under two if both parents agree it’s best for the child’s well-being.
(2) What about Children who have reached the age of two and have not yet reached the age of eight?
For a child aged two or older, custody should be decided by mutual agreement. If both of the parents cannot agree on child support, the court will consider each parent’s ability and circumstances to support the child, prioritizing the child’s healthy development.
In cases where both parents seek direct custody, Article 46(I) of the Judicial Interpretation of the Marriage and Family Codification (I) (the “Interpretation”) outlines the following criteria for the court to prioritize guardianship in the child’s best interest:
(i) If either of the parent is sterilized or otherwise unable to have children.
(ii) If the child has lived with one parent for a long time, changing their living environment would clearly be detrimental to the child’s healthy development.
(iii) One of the parents has no other children, while the other parent does.
(iv) The child lives in a healthy environment with one parent, while the other parent has a serious illness or conditions harmful to the child’s health, making it unsuitable for them to live together.
(3) Who gets custody for Children aged eight and older ?
If the child’s parents cannot agree on custody for a child aged eight or older, the child may choose the parent he/she wishes to live with based on their own judgments and choices.
However, children over the age of eight are not entirely free to choose which parent to live with. The child’s wishes are given consideration only if both parents are willing and able to take on the responsibility of support. This balanced approach provides assurance that the child’s preferences are respected while also guaranteeing that environment will also benefit to their development.
(4) What other specific cases may influence the decision of custody?
(i) If both parents are capable and willing to care for the child, but the child has lived with a grandparent who is willing and able to continue care, the court may consider this in custody decisions. The stable living arrangement and emotional bond with the grandparent can influence custody prioritization.
(ii) In a divorce between a biological parent and a stepparent, custody reverts to the biological parent if the stepparent opts out of raising the stepchildren. The stepparent can choose to provide financial support voluntarily, but it is not legally required.
(iii) Adopted children have the same rights and responsibilities as biological children, so the same provisions apply. However, if one spouse consistently opposed the adoption, custody after divorce goes to the adopting parent.
(iv) When determining custody for multiple children, courts prioritize mutual parental agreement, pursued through litigation if needed. If children are no longer breastfeeding, the court aims to assign custody fairly, considering financial obligations, child development, and parental capabilities. For breastfeeding infants, decisions prioritize the child’s best interests, often leading to equal custody division.
(v) In unusual case if both parents agree to switch guardianship responsibilities, the court may allow it if it benefits the children’s well-being.
Part 2. Change of Child’s Guardianship
(1) Are parents allowed to change arrangements of custody by agreement after divorce?
Yes, both parents have the ability to modify child support arrangements through a mutual agreement. If one parent fails to uphold the terms of the agreement, the other parent can seek legal action to enforce the changes to the child support arrangement as agreed upon.
(2) Any changes in specific circumstances that may lead to change of custody?
In certain circumstances either of the parent can seek the change custody under the following conditions:
(i) The parent with whom the child currently resides is unable to continue caring for them due to arisen of significant illness or disability.
(ii) If the custodial parent neglects their duty to care for the child, engages in child abuse, or if their lifestyle negatively affects the child’s physical or mental well-being.
(iii) An eight-year-old child expresses a desire to reside with the other parent, who is fully capable of providing for their needs.
(iv) There are additional legitimate grounds for requesting modification.
Part 3. How is Alimony calculated by the court?
(1) What is generally included in the alimony?
The alimony primarily includes the costs for the child’s living expenses, education, and medical care.
(2) How is the alimony support assignment to custodial and non custodial parent?
Upon divorce, the non-custodial parent is required to contribute to child support financially. The amount and duration of these payments are either mutually agreed upon or determined by the court if no agreement is reached but most importantly, even if the custodial parent changes the child’s surname without consent, the non-custodial parent remains obligated to pay support.
(3) Under what circumstances can a child request an increase of the original alimony amount?
In the following situations, a child may ask the parent with the financial means to provide additional support.
(i) The initial alimony is inadequate to maintain the local standard of living.
(ii) The child’s actual needs have surpassed the original amount due to illness or educational expenses.
(iii) Other valid reasons to justify the increase.
(4) What are the criteria for alimony in practice?
(i) Parents with a fixed income: child support is generally 20% to 30% of their gross monthly income. If supporting two or more children, this may increase but usually does not exceed 50%.
(ii) Parents without a fixed income: alimony is typically based on their annual income or industry average, usually 20% to 30% of their average annual earnings or the previous year’s local cost of living.
(iii) In rare cases, alimony may be adjusted up or down by mutual consent or court decision.
(iv) Child support is based on a percentage of the parents’ income, the child’s needs, parents’ financial capabilities, and local living standards. Support should meet basic needs if the parent’s income is low and cover regular expenses if the parent’s income is higher, without being excessive. The aim is to benefit the child without misusing funds for asset redistribution.
(5) What are the payment methods of alimony?
The alimony should be paid regularly or as a lump sum if feasible. In unusual cases where there is no income generated by the parent or the whereabouts of the custodian or non custodian parent are unknown, the child’s maintenance may be deducted from their assets.
(6) How long is the typical duration for alimony?
(i) Usually until the child turns 18.
(ii) Parents may cease alimony payments for children aged 16 to 18 if their main source of income is from employment.
(iii) Under certain circumstances, adult children who are not yet self-sufficient may receive essential support. This includes those still pursuing education up to high school level or below, or those having lost the ability to work due to reasons beyond their control, preventing them from maintaining a normal standard of living.
(7) What are the consequences if maintenance payments are not made on time?
If alimony payments are not made in due time, the recipient can seek court enforcement, compelling the defaulting party to fulfill their obligations. In response, the court may freeze bank accounts, real estate and other assets. The court can restrict their travel on high-speed trains and airplanes, and potentially limit their ability to leave the country.
If you would like to know more about the custody and alimony of divorce in China, please feel free to contact us.
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Find Out How to Divide Assets in International Divorce Lawsuit in China
Exploring the complexities of asset divisions in international divorce cases often proves contentious and intricate.
In this second part of our International Divorce article, we cover extensively regarding asset division and ownership of foreigners and their spouse in the divorce process in China.
1.What property belongs to the personal property of one of the spouses in the event of divorce?
Article 1063 of the Civil Code clearly outlines the personal assets of an individual spouse, which, upon marriage, remain separate and do not become shared property with the other spouse.
(i) Premarital property, defined as assets owned by an individual prior to marriage registration, retains its status as personal ownership unless otherwise specified by mutual agreement.
(ii) Personal Injury Compensation: Any damages or compensation received by either party for bodily injury sustained by an individual, directly associated with the injury, is considered personal property.
(iii) Property designated in a will or gift agreement as belonging exclusively to one party.
(iv) Household items set aside for personal use by an individual, like clothing and personal care items, are typically regarded as personal property.
(v) The law also offers a broad guideline to encompass other instances of clearly personal property and to accommodate the varied aspects of social life. When determining the allocation of property, an asset can only be classified as personal property if it doesn’t fit into the first four categories mentioned above but exhibits distinct personal exclusivity. If the classification of the property is ambiguous, it is treated as shared property.
2．What property belongs to the joint property of husband and wife?
The Civil Code and the Interpretation on the Application of the Marriage and Family Part of the Civil Code specify that the following assets constitute the shared property of the spouses.
i) Earnings, bonuses, and compensation for work performed.
ii) Income generated from production, business activities, and investments.
(iii) Income derived from intellectual property rights.
(iv) Inherited or donated assets, excluding those specifically designated in a will or gift contract as belonging solely to one party.
(v) Profits obtained from investments made by one of the parties using their personal assets.
(vi) Housing subsidies and housing funds received or entitled to be received by both spouses.
(vii) Basic pension and bankruptcy resettlement compensation received or eligible for both parties.
(viii) Other assets that are designated for joint ownership
3. Can the spouses agree that property acquired during the marriage and pre-marital property shall belong to each of them?
Yes. Indeed, both parties should sign a written agreement, or the assets acquired during the marriage will be deemed joint property of the spouses unless otherwise provided in laws. We strongly recommend notarizing the relevant property agreement to guarantee its validity and recognition by the court in the event of any disputes.
4. How is the joint property of husband and wife distributed by the Chinese court in case of divorce?
In principle, assets are typically distributed equally, following a 50/50 division. However, Chinese courts have the discretion to allocate a larger portion to the party responsible for childcare, the woman, or the innocent party, based on the specific circumstances of the property.
5. How is the property purchased for both parties at the expense of one parent to be distributed in the event of divorce?
If the house was bought by the parents of one party of the spouses before their marriage, it shall be deemed as the gift to their own child unless expressly stated by the parents that the gift belongs to the spouses. If the house was bought by the parents of one party of the spouses after their marriage, it follows the agreement made by the couple regarding the house at that time. If there is no agreement or the agreement is ambiguous, unless the parents explicitly intended the gift for only one of the spouses, the property is considered a gift to the spouses and thus becomes joint marital property.
Question & Answers
(1) Can the spouse who has contributed more to the family ask for compensation from the other spouse?
In accordance with Article 1088 of the Civil Code, a spouse who has taken on more significant responsibilities such as child-rearing, elderly care, or supporting the other spouse in their endeavors, holds the right to seek compensation from the other party in the event of divorce. However, the Civil Code does not define specific criteria for this compensation, often resolved through negotiation between the spouses or by the court’s decision.
(2) In the event of a divorce, if one of the parties is cheating on his/her spouse, how can the other party maximize his/her interests in the division of property?
As per Article 1091 of the Civil Code, if one spouse cohabits with another individual, leading to divorce, the innocent party is entitled to seek compensation from the party at fault.
Article 1091 of the Civil Code grants the innocent party the right to seek compensation in cases where circumstances leading to divorce are attributable to the fault of the other party.
(i) Bigamy
(ii) Living together with someone else.
(iii) Family violence
(iv) Abuse or abandonment of family members
(v) Other major faults.
(3) What should be done if one of the spouses is found to have transferred property during the divorce?
If one of the spouse is found to have concealed, transferred, sold, damaged, or recklessly spent shared marital assets, or attempted to incur joint debts deceitfully to seize the other spouse’s property, the court may, during the divorce asset division process, allocate a reduced or no share of the marital assets to that spouse. If such misconduct is discovered by the other party after the divorce, they have the right to petition the court for a reconsideration of the division of the couple’s shared assets.
(4) What debts are shared by both spouses?
(i) Debts jointly signed and acknowledged by both spouses.
(ii) Debts accumulated by one spouse, for which the other spouse subsequently acknowledges joint responsibility.
(iii) Debts accumulated by one spouse in their own name during the marriage to cover the family’s everyday necessities (excluding debts exceeding these needs.
(5) How are joint debts to be paid by both spouses?
Both parties are responsible for payment.
If you have any queries, please feel free to contact us
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
Do You Know the Methods and Jurisdiction of International Divorces in China?
With the growing number of foreigners residing in China, there is also an increasing divorce cases among international couples, whether between two foreign nationals or a mix of Chinese and foreign individuals. Exploring these situations requires a thorough understanding of the complex laws and regulations governing foreign-related divorces in China.
This article aims to provide comprehensive insights into the relevant Chinese laws that underpin these divorces, offering readers a nuanced understanding of the process. In China, there are two primary methods for filing for divorce: mutual consent and divorce litigation.
1. How To Get Divorced in China
(1) Methods of Divorce
Divorce in China can be broadly classified into two main avenues: mutual consent divorce and divorce via litigation. Mutual consent divorce entails the voluntary agreement between a married couple to dissolve their union, which is formalized through the marriage registration authority. On the other hand, litigation divorce involves one or both spouses resorting to the people’s court to initiate divorce proceedings.
(2) What are the advantages of divorce by mutual agreement?
Mutual agreement divorce offers a more streamlined and expedited process compared to litigation divorce. Essentially, if both parties reach consensus on the divorce, they can directly visit the Civil Affairs Bureau, China’s administrative body for marriage registration, to initiate the divorce registration.
Following a mandatory 30-day cooling-off period from the application date, if both individuals remain steadfast in their decision to divorce, they can return to the Civil Affairs Bureau to obtain the official divorce certificate.
(3) Can a foreigner get divorced by mutual consent in China?
If both spouses are officially married in China, they can pursue a mutual agreement divorce at the Civil Affairs Bureau. However, if both individuals are foreigners and their marriage wasn’t registered in China, divorce can only be achieved through litigation.
(4) Under what circumstances is a litigated divorce necessary?
If both parties are unable to reach a mutual agreement on the divorce or if both parties did not register marriage in China, it will proceed through litigation.
(5) If a divorce is obtained through litigation, under what circumstances will the court grant a divorce?
In the legal proceedings of China, when one spouse initiates a divorce lawsuit for the first time, the court typically doesn’t immediately approve the divorce. However, the court will grant the divorce unless specific circumstances exist.
i) Being married to more than one person simultaneously or living together with another individual while still married.
ii) Engaging in acts of family violence or maltreating and abandoning family members.
iii) If the individual has a history of repeatedly engaging in activities such as gambling or drugs abuse.
iv) Two years of separation resulting from irreconcilable differences.
v) Additional factors contributing to the deterioration of the couple’s relationship.
(6) What should I do if the court decides not to grant a divorce?
If the court does not grant a divorce in the first legal action, a second divorce petition can be filed after six months from the judgment’s effective date. If the spouses continue to live separately for one year following the first judgment, and one of them files for divorce again, the court is mandated to grant the divorce.
(7) How long does it normally take to file for divorce?
A divorce process typically spans from six months to a year. The duration may vary depending on the workload of individual courts, with those handling heavier caseloads potentially requiring more time. Opting for mediation can shorten this timeframe.
2. Determining Jurisdiction in Foreign Divorce Matters
Determining jurisdiction in foreign divorce matters involves understanding which court has the authority to hear the case. For international couples, this typically depends on the domicile or habitual residence of the parties involved. We have outline a framework to address the divorce court jurisdiction in each individual scenarios that may take place.
Scenario 1：Chinese + Foreigners
(1) If the marriage took place in China, and both parties settled abroad.
The jurisdiction will be prioritize granting to filing the divorce case in the courts of the country where the parties reside.
If the courts in the country of residence refuse to accept the divorce case and determine that it falls under the jurisdiction of the court where the marriage took place, or where one of the parties last resided in the country, then jurisdiction lies with the court in that location.
(2) If the marriage took place in abroad and both parties settled abroad.
The jurisdiction 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 jurisdiction of the individual’s home country, then the court in the individual’s original or last known residence in their home country will have jurisdiction.
(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 jurisdiction, as stipulated in Article 23 of the Civil Procedure Law and elaborated in Article 15 of the Judicial 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 jurisdiction. (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 jurisdiction (Articles 4 and 23 of the CPL)
(2) if the marriage took place in foreign countries, and both settled in China.
Jurisdiction 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 jurisdiction 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.
If you have more queries about international divorce, please feel free to contact us
Saway Wang
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
