INTERNATIONAL FAMILY LAW &
EXPAT DIVORCE IN CHINA
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Getting a divorce is never easy, but going through one when you're far away from home is especially difficult. For most people, finding honest, accurate legal advice is one of the biggest challenges to handling a divorce 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, China's most experienced international divorce lawyer.
It is important to seek early advice from a 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. 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 expats, married anywhere in the world, can get divorced in China provided they meet a few basic conditions. (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 court procedure is used. In order to file for divorce in China you 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 wordwide. 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 a divorce between two foreign citizens can be finalized in as little as one month -- assuming that both spouses can come to an agreement over any outstanding issues related to their separation. 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.
Keep in mind that there are two very different routes to get divorced. Broadly speaking, couples may divorce by agreement or by litigation. Which method to use - and therefore how long the process will take - depends on the details of your situation. We will go over both types of divorce in just a few moments.
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 European Union, Canada, Australia and New Zealand). 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), but the exact process does vary from one country to the next.
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.
If the marriage was originally performed in China and one spouse is a Chinese citizen, an "express" divorce procedure is often possible. In this scenario the Chinese courts are not used. Instead, the divorce is registered with a local Chinese Marriage Registration Office (which is a department within the local Civil Affairs Bureau) and a divorce certificate issued (rather than a formal court-issued divorce judgement). Once the necessary legal formalities are completed, the divorce is entered into the record and the marriage is officially dissolved. So long as the couple can come to an agreement on how to settle their affairs, this process can usually be completed relatively quickly, but it can only be used in certain very simple situations (and expat couples cannot use it at all).
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. Indeed, those couples who are fortunate enough to be able to work out all the fine points of the divorce and 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 still classified as litigation, in practice all that happens is the court approves a prepared written agreement made jointly by the spouses and orally confirms various facts relating to the marriage and state of mind of the parties. At the end of the process the court will issue a "civil mediation statement", which is a type of judgement. This formal legal document serves as proof of divorce and is valid worldwide.
As part of the divorce process, Flora will always take care of drafting the divorce agreement (in English and Chinese) and preparing the couple to attend court, in addition to attending the court hearing.
Divorce vs. Seperation
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. Your Chinese lawyer 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 available:-
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.
Expat Group Leader, Partner
Flora is China's most experienced international divorce lawyer and she is always available to help you no matter where you are located or where you got married.