INTERNATIONAL FAMILY LAW &
Divorce, Asset Division and Child Custody
Finding honest, accurate legal advice is one of the biggest challenges to handling a divorce in China. Whether you're married to a Chinese or you're an expat couple in China, we can help no matter where you live or where you got married.
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Our unique family law team is headed by Flora Huang. For over a decade, Flora has been China's most trusted international divorce lawyer.
It is important to seek early advice from a qualified Chinese lawyer before entering in to settlement discussions with your spouse. A specialist international family law attorney will be able to advise you of your financial entitlement, and the likely outcome of a divorce in China as opposed to another country. It is vitally important to get this information at an early stage in order to make informed decisions.
ELIGIBILITY TO DIVORCE
Most couples with a connection to China can divorce using the Chinese legal system. In many cases, this is the best option (quickest and most efficient). If you fit within one of these three categories, you can likely handle your divorce in Mainland China:
Expat couples (two foreign citizens living in China)
Two foreigners can get divorced in China no matter where they got married. (More on this below.)
A foreign citizen married to a Chinese citizen
A foreigner married to a Chinese citizen either in China or abroad can get a divorce in China even if neither spouse currently lives in China.
Two Chinese citizens living in China or abroad
Chinese citizens married in Mainland China can get divorced in China even if they are currently living abroad.
Expats & Foreign Citizens
Regardless of where you got married, expat couples can get divorced in China. In most cases, a special type of court procedure is used. Expats wanting to file for divorce in China do have to meet a few basic requirements:
at least one spouse must have lived in the same Chinese city (ideally at the same address) for over one year;
both spouses agree to end the marriage (strongly recommended, but not strictly required); and
both spouses agree to divorce in China using the Chinese court system.
Regardless of your nationality, a divorce issued in China is valid and legal worldwide. Once the divorce is handled in China, you will not need to do it again in your home country. (Learn more below.)
How long does it take?
Each case is different, but in the hands of an experienced Chinese divorce and family law attorney many international divorces can be finalized in as little as one month. On average, the divorce process in China will take 1-3 months to complete. These estimates assume that both spouses agree to divorce and agree in principle on the terms of the divorce. Without agreement, the process will be longer and requires specialist evaluation.
Being an internationally recognized expat divorce lawyer, Flora is often able to have the divorce confirmed immediately after the court hearing, eliminating weeks of waiting for the judgement to be issued. When it comes to expat divorce in China, experience is the key factor in assuring a positive outcome.
Is a Chinese divorce internationally valid?
Yes, absolutely. A divorce done in China is fully recognized in other countries (including the United States, Great Britain, the EU, Canada, Australia, New Zealand and South Africa). Each country has their own rules for "transferring" a judgement from one country to another. Having a divorce judgement registered or formally recognized in your home country is typically fairly straightforward (in many countries, inducing the US, UK, Australia and Canada, no additional steps are required).
If you have any questions or concerns about the validity of a Chinese divorce in your home country, don't hesitate to ask us.
DIVORCE BY AGREEMENT
A divorce by agreement is possible when both parties to the marriage want, or at least agree, to get divorced. In an agreed divorce the parties are at liberty to negotiate child and spousal support payments, visitation rights and division of joint marital property (i.e.: real estate, furniture, cash, investments, etc.) without any interference from a Chinese judge.
Any couple eligible to divorce in China can divorce by agreement. In most situations, a negotiated divorce is the best option for both spouses. In an agreed divorce, the divorce settlement agreement is drafted and signed before heading to court, so there are no last-minute surprises. The divorce agreement is the central component to an agreed divorce. In many cases, a couple will privately negotiate the terms themselves based on the realities of their situation. Division of assets, child custody, visitation and support can all be worked-out in a calm and deliberative fashion.
If there are sticking points, we would lend a hand in trying to smooth them over; often we will make suggestions flowing from the experience of having handled hundreds of similar cases. Once the broad outlines of an agreement are in place, we draft the formal divorce agreement in English and Chinese. The agreement is then made available to each spouse and, after any necessary revisions are made, is finalized and signed. A signed copy will subsequently be submitted to the court during the divorce hearing. The divorce agreement is legally binding upon both spouses and it can be enforced in any court worldwide.
If the marriage was performed in China and one spouse is a Chinese citizen, an "express" divorce procedure is often possible. In Divorce by Registration the Chinese courts are not used. Instead, the divorce is registered with a local Chinese government office (called Marriage Registration Office, which is part of the local Civil Affairs Bureau) and a divorce certificate issued (rather than a formal court-issued divorce judgement). Subsequent to enactment of the new Chinese Civil Code, this procedure is now a two-step process. Both spouses must apply in-person, together, and then return thirty (30) days later to finalize the divorce and collect the divorce certificate. Once the necessary legal formalities are completed, the divorce is entered into the record and the marriage is officially dissolved. Divorce by registration is only open to couples where at least one spouse is Chinese, who were married in China and who agree to divorce.
How does "Divorce by Agreement" work in Expat Divorce?
It is quite common for expat couples living in China to file for divorce while still on friendly terms. Couples who are able to work out the fine points of the divorce and have us put them in writing usually end up saving a great deal of time and effort. In these situations the divorce is not considered "contentious", but because of special rules applying to foreign couples, the Chinese courts are still responsible for finalizing the divorce.
The judicial procedure used is called a "divorce settlement confirmation" (essentially a friendlier, streamlined legal procedure is applied on account of the couple agreeing to divorce). While technically this is a type of litigation, in practice all that happens is the court approves a prepared written agreement made jointly by the spouses and confirms various basic facts relating to the marriage and state of mind of the spouses. At the end of the process the court will issue a "civil mediation statement", which is a type of judgement. This formal legal document issued by the court serves as proof of divorce that is valid worldwide.
As part of the divorce process, Flora will always take care of drafting the divorce settlement agreement (in English and Chinese) and preparing the couple to attend court, in addition to attending the court hearing.
Divorce vs. Separation
It may seem silly to ask, but in fact this distinction counts for a lot when it comes to ending a relationship. Couples who are legally married can opt to either separate temporarily and hopefully reconcile or go ahead and get a full and final divorce, which means permanently ending the marriage through a legal procedure. A legally obtained divorce is the only way to permanently end a marriage and is required in order to remarry.
In many countries a period of "legal separation" (generally between one to five years) is required before a couple can apply for a divorce. China has no legal separation requirements and it is not necessary to register your separation with the court.
However, like most countries, China does have a one year residency requirement - which must to be met by at least one spouse - before it is possible to file for an expat divorce in China. For residency to count toward meeting the requirement, it must be legal and verifiable (if you registered with the local police station when you moved to your current address, you likely have the required documents already). If you are married to a Chinese citizen, there is no residency requirement to divorce in China.
DIVORCE BY LITIGATION
Where only one spouse wants to end the marriage, the divorce must be conducted through the courts. Assuming there is no prior agreement, the court will decide how to settle all outstanding issues including child support, visitation rights, property division and support payments. One interesting feature of Chinese litigated divorces is the focus placed by the courts on trying to secure a negotiated settlement.
Generally speaking, the judge will, at multiple points throughout the litigation process, ask the spouses if a settlement seems like a reasonable possibility and, if so, if they would like to switch to court-approved mediation to try and resolve their differences. Of course, if the relationship is particularly acrimonious, or if mediation fails to deliver a compromise, the court once again takes over the case and issues a final judgement.
A contentious divorce will be granted by the Chinese courts when at least one of following conditions can be satisfied:-
- where circumstances causing the alienation of mutual affection exist (so-called "loss of affection");
- where the spouses have lived separately for over two (2) years because of incompatibility;
- where a spouse has committed bigamy or has cohabited with a third party;
- where a spouse is has committed acts of domestic violence or has otherwise maltreated his/her spouse;
- where a spouse has a long-term gambling or drug addiction; or
- where a spouse is declared missing.
As in every country, a litigated divorce is significantly more complex than a consensual one. It will take longer and cost more to handle than a consensual divorce. Generally speaking, no matter how hopeless the differences may seem, it is almost always a good idea to try and end the marriage through a negotiated divorce settlement. Our lawyers can of course help guide you though this process.
What documents do I need?
To get the process started, you should try to have available the following documents:-
Work Permit or Foreign Expert Certificate;
Police Registration Forms;
Birth Certificate(s) (for minor children only);
Ownership Certificate(s) (if you own real estate).
Do I need my original marriage certificate?
You will need an official government document certifying your marriage in order to handle the divorce in China. This is usually the certificate you obtained from your state or provincial government when you got married. If it has been lost or you no longer have access to it, a new copy of the certificate can be ordered from the relevant government department (we can also handle this for you). If you were married in China, we can help you to get an official copy of your marriage registration records from the Civil Affairs Bureau where the marriage was performed, which can act as a replacement for the original certificate (i.e.: the red marriage book). International marriage certificates will need to be legalized, which we take care of for you.
What areas do you serve?
We serve all of Mainland China from our offices in Shanghai. We routinely handle expat divorce and international family law matters in all of the following cities and provinces:
Have questions? Email Flora for quick, free answers at firstname.lastname@example.org
Alternatively, you can call her directly on +86.181.2115.5305