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
How New Civil Procedure Law Will Transform Foreign Litigation
Exploring the revisions to China’s Civil Procedure Law, effective from January 1, 2024, reveals a notable addition: a new section dedicated to foreign-related civil litigation procedures. This update expands the jurisdiction of Chinese courts over such cases and introduces key provisions like parallel proceedings. It also simplifies procedures for foreign-related service and enhances judicial assistance systems. Additionally, it outlines procedures for extraterritorial investigation and evidence collection and refines rules for recognizing and enforcing foreign court judgments. This article provides insight into the implications these changes hold for foreigners and foreign companies.
1. Extension of the jurisdiction of Chinese courts in foreign-related cases
Where the following circumstances exist, Chinese courts may have jurisdiction
(1) Six selections of jurisdictions
Chinese courts can extend their jurisdiction to foreign-related cases under certain circumstances. If a civil litigation (except for identity relations litigation) involves a defendant (i.e., a foreign individual or company) without domicile in China, jurisdiction may be established in the following locations:
(i) where the contract was made;
(ii) where it was executed;
(iii) where the subject matter of the dispute is situated;
(iv) where property may be seized;
(v) where the wrongful act occurred;
(vi) where the representative organization is domiciled.
(2) The parties have mutually agreed in writing to select the jurisdiction of Chinese courts.
(3) Where there are other appropriate connections
In a civil jurisdictional dispute involving Intellectual Property Bridge No. 1 LLC, a Japanese company, and Huawei Technologies Co., Ltd. among others, the Japanese company contested the jurisdiction of the lawsuit initiated by Huawei. They argued that the dispute, centered around a license for a standard-essential patent, was essentially contractual in nature. However, as the Japanese company did not have domicile in China, they maintained that the jurisdictional connections pertaining to the contractual dispute were not relevant to this case. Consequently, they urged the Chinese court to dismiss the lawsuit.
In response to the jurisdictional objections, the Supreme Court introduced the nuanced concept of the “principle of appropriate connection.” It determined that Dongguan City had a relevant link to the dispute, justifying its role as the territorial jurisdictional hub. Furthermore, under relevant regulations, the First Instance Court is empowered to handle inter-regional jurisdiction in initial patent civil cases within Guangdong Province, excluding Shenzhen City. Therefore, the court’s exercise of jurisdiction is considered appropriate and free from any wrongdoing.
(4) The parties did not raise objections to jurisdiction and instead responded to the defense or lodged counterclaims.
For instance, in a scenario where a Chinese company entered a sales agreement with a Canadian counterpart, specifying the jurisdiction of the People’s Court in Shanghai, subsequent legal action was taken by the Chinese company against the Canadian entity in the People’s Court of Beijing. Despite this, the Canadian company opted not to contest jurisdiction but rather filed a defense statement with the Beijing Municipal People’s Court. In light of the recently amended law, this action by the Canadian party was construed as an implicit acknowledgment of the jurisdiction of the Beijing Municipal People’s Court. Consequently, the court was deemed rightfully vested with jurisdiction over the case.
2. Additional provisions on parallel proceedings
(1) Parallel proceedings in general
In the same dispute between parties, if one party sues in a foreign court and the other party sues in a Chinese People’s Court; or if one party sues in both a foreign court and a Chinese court, the Chinese court with jurisdiction may still accept the case.For example, a Chinese company and a U.S. company signed a supply contract, the contract did not explicitly agree on the competent court. The Chinese company sues the American company in a Chinese court, and at the same time, the American company sues the Chinese company in a U.S. court. According to the newly amended law, if the Chinese court has jurisdiction under the Civil Procedure Law, it can still accept the Chinese company’s lawsuit even if the American company has also filed a lawsuit in the American court.
(2) Parallel Litigation under Exclusive Jurisdiction Agreement
If the parties enter into an exclusive jurisdiction agreement to choose a foreign court jurisdiction, and the agreement does not violate the provisions of this law on exclusive jurisdiction, does not involve the People’s Republic of China’s sovereignty, security or social public interests, the Chinese court may rule that it is not admissible; if it has been admissible, the Chinese court may dismiss the lawsuit.For example, a Chinese company signed a sales contract with a French company and concluded an exclusive jurisdiction agreement stipulating that only the French court had jurisdiction; if the agreement did not violate the exclusive jurisdiction and did not involve China’s sovereignty, security or social public interests, then even if the parties filed a lawsuit against the Chinese court, the court could rule that the lawsuit was inadmissible or dismissed.
3. Revisions to Acceptance Subjects and Modes of Foreign-related Service
(1) Litigation Representatives
(2) Branches
When the recipient is a foreign legal entity (company), documents can be served on its representative office, branch, or appointed business agent in China authorized to accept service. There is no requirement to demonstrate the branch’s authorization to accept service.
(3) Sole Proprietorship
If a company has established a sole proprietorship in China, legal documents can be served directly to the sole proprietorship without a separate authorization from the foreign shareholder.
(4) Foreigners or Stateless Persons
Should a foreigner or stateless individual serve as the legal representative or key decision-maker of a company or organization in China and be a co-defendant in a commercial dispute, serving documents on the company or organization is permissible.
(5) Foreign Legal Entity or Other Organization
When dealing with a foreign legal entity or organization, if its legal representative or primary decision-maker is situated in China, serving documents upon them is authorized.
(6) Electronic Means
Electronic service now extends beyond conventional methods like fax or email. What matters is ensuring acknowledgment of receipt by the recipient, as long as it complies with the recipient’s country’s laws.
(7) Flexible Alternatives
Agreed-upon alternative methods of service are permissible, provided they adhere to the legal framework of the recipient’s country. For instance, if a trusted friend or relative delivers the document on behalf of the recipient with their consent, and without violating local laws, it is deemed acceptable.
(8) Efficient Service through Public Announcement
In cases where traditional methods are impractical, service may be conducted through public notice. The duration for such service has been shortened to 60 days, after which service is considered effective from the date of publication.
4. Expanding Extraterritorial Evidence Gathering Methods
(1) China’s Reach for Evidence in Foreign Territories under Revised Civil Procedure Law
When evidence is located abroad, the Chinese court has the authority to obtain and collect it based on provisions outlined in international treaties between the People’s Republic of China and the respective foreign State. This also applies to treaties where China is a signatory. Alternatively, evidence can be procured through diplomatic channels.
For instance, if an international treaty exists between China and the foreign state, such as the Hague Convention on Evidence, the people’s court may seek assistance through China’s foreign diplomatic service to request the State where the evidence is located to assist in the investigation and collection process.
(2) Three Varieties of Extraterritorial Evidence Gathering Methods (Subject to Legal Compliance in the Respective Jurisdiction)
A. In cases where the party or witness holds Chinese nationality, the Chinese embassy or consulate in their residing country may be tasked with conducting depositions on their behalf.
Embassy or consulate personnel, acting under the authorization of the people’s court, can coordinate with the involved parties or witnesses, schedule the deposition proceedings, and forward the collected evidence to the court.
B. Upon mutual agreement, the People’s Court is empowered to gather evidence through instant messaging platforms.
For instance, if a critical witness resides abroad and is unable to attend court proceedings in person, both parties’ consent allows for remote testimony via a court-arranged video conference. During this session, the witness can provide responses to queries from lawyers and the judge. Similarly, electronic evidence such as email exchanges or WeChat conversations can be shared and presented in court hearings through instant messaging tools, subject to the consent of both parties, to substantiate relevant case facts.
C. Upon mutual agreement of both parties, the People’s Court is authorized to consider alternative approaches for gathering evidence.
The amendment to the Civil Procedure Law concerning foreign-related dispute resolution procedures not only marks a comprehensive overhaul of many foundational aspects of foreign-related legislation but also incorporates numerous subtle and ingenious system designs. This not only addresses the immediate needs of foreign-related judicial practice but also reflects the unparalleled wisdom and ingenuity of the legislators.It stands as a significant response to the evolving landscape of the times and represents an essential requirement for the full realization of China’s state governance strategy governed by the rule of law, the advancement of reforms, and the expansion of international engagement. This amendment embodies a profound adaptation to the evolving dynamics of our era and stands as an imperative for the comprehensive implementation of the rule of law strategy, the deepening of reforms, and the holistic expansion of international outreach.
Email: sawaywang@billionslawyer.com
Tel/Whatsapp: +86 18017682422
