Expat Divorce in China
I have found that in more than ten years of practice in international family law, I am frequently asked “As an expat, can I divorce in China?”. More and more expats are moving to live in China. After making the difficult decision to divorce, they have to consider where and how to do it. Some expats consider returning their home country for divorce, but some consider divorcing in China where they have been habitually residing for a long time as they consider it to be more convenient for them.
Jurisdiction for International Divorce in China
Under Chinese laws, there is no prohibition for divorcing until you have been married for a certain length of time, as there is in some countries (for example to divorce through the English courts you must be married for 1 year or more). In China, even if you married yesterday, you are entitled to apply for divorce today if you believe your marriage has irretrievable broken-down. However, if a husband and wife do not agree to divorce, the Chinese court may suggest reconciliation. However, the possibility for the Chinese court to accept a divorce application will depend on satisfying the court’s jurisdiction. In order for British and other expats to divorce within the Chinese courts, one of the following jurisdiction criteria must be met:
- Either the husband or wife is Chinese;
- The marriage is registered in China;
- Either spouse has been habitually resident in China for at least one year;
- Both parties mutually agree to divorce in China on the basis that they married outside of China and neither are Chinese, but they are habitually living in China continuously for a year or more.
Grounds for divorce in China
‘Irretrievable break-down of marriage’ is the principle which the Chinese court must adhere to, when making the decision on divorce.
- Within the Chinese courts, one of the following circumstances should be used to support the assertion of ‘irretrievable breakdown of marriage’:
- One party to the marriage has committed adultery, or is cohabiting with a third party;
- Domestic violence, or maltreatment and desertion of one party to the marriage by another;
- Bad habits of one spouse for example gambling or drug addiction, which remain persistent despite repeated warnings;
- Separation of the parties for two full years caused by incompatibility;
- Any other circumstances causing alienation of mutual affection between the parties.
In addition, a divorce shall be granted if one party to the marriage is declared to be missing and the other party files an action for divorce because of this.
In a summary, during the course of divorce proceeding, the party who is the applicant for divorce should provide enough evidence to prove that the marriage has broken down irretrievably.
Financial and children matters
While processing a divorce, the Chinese courts may also make orders concerning marital assets and arrangements for any children.
Correctly drafted prenuptial agreements or marital agreements will be followed by the court. Where there the parties do not have an prenuptial or marital agreement, the Chinese court will generally respect a mutual agreement in relation to family assets and maintenance that has been reached between the parties. If an agreement cannot be reached, the Chinese courts will impose orders to divide assets, provide maintenance for any children, and set out arrangements for the children’s care.
The main principle followed by the Chinese courts is that the ‘children’ best interests’ must be taken in to account. This applies to domestic and international family cases. Within contested divorce proceeding, parents are required to file evidence in support of their application for child custody, for example. The Chinese court would also ensure that the rights and duties of the noncustodial parent are take in to account.
How long does expat divorce in China take?
Under the Procedural Law of PRC, a domestic case which is settled using the summary procedure takes between 3 and 6 months. In international cases, which may involve service of documents overseas, and collection of evidence overseas, the length of the divorce may be more. In addition, for cross-border family cases, the period within which a judgment can be appealed is 30 days, whereas for domestic cases it is 15 days.
This article was prepared by Attorney Ningning Zhao, the Partner of Jincheng Tongda & Neal Law Firm, PRC. Ms Zhao is highly experienced in international family cases and has practised law in China for more than 10 years. Ms Zhao has written and had published books entitled Legal practice of International Family Cases (Published by Law Press-China, 2015) and The Lawyer’s Practice in Civil Litigation (Co-author, Published by Law Press-China, 2014).
Ms Zhao has the following accolades:
- Fellow of IAFL(International Academy of Family Lawyers)
- Fellow of LAWASIA
- Member of American Bar Association (ABA)
- Fellow of China Law Society
- Director of China International Private Law Society
- Instructor of Communication University of China (CUC)
- Member of Shanghai Bar Association (SBA)
- Special Author of Law and Life by China Law Press
- Volunteer lawyer of Shanghai Bar Association
Attorney Ningning Zhao may be contacted as follows:
Mobile：86-188 1779 0339