Dissolving a marriage in China can take place whether by settling an agreement or by litigation. The couples who want to obtain the divorce need to understand the rules and regulations in this matter, if children or assets are involved, in order to choose the proper solution. Our divorcelawyers in China are able to provide you with legal support and representation in the court of law if you decide to divorce from your partner. Proper counseling in your case is recommended, especially if you are a foreigner married to a Chinese citizen.
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Divorce by agreement in China
The easiest way to end a marriage in China is to request a divorce by agreement. In this case, both the husband and the wife decide that, due to certain reasons, the marriage can no longer function. The legal procedures, in this case, are fast and involve low costs. The Marriage Registration Offices in China handle this type of divorce. The documents that need to be provided by the couple filing for divorce are:
- residence certificate;
- identification documents;
- marriage certificate;
- divorce agreement signed by both parties out of free will;
Special regulations apply when the marriage was concluded in another country and the marriage certificate was issued by a foreign government. In this case, the only possible divorce procedure is to request a divorce by litigation. However, with the help of a divorceChinese attorney, this procedure should be straightforward. We can also help you divide any assets, like any properties in China that were purchased during the marriage.
Divorce by litigation in China
When the spouses are both Chinese and cannot mutually agree to end the marriage, one of the parties can appeal to a people’s court in China which will decide upon the divorce. A divorce by litigation requires more steps and will last longer. In such cases, courts take less than three months to settle divorce cases of simple nature while the complicated foreign cases may take up to six months. If the judge’s decision is against divorce, the plaintiff can appeal the judgment six months after it was issued. However, foreign affairs take more time due to the service of the written order. The divorce by litigation may take months or even two years depending on the condition that the dispute cannot be easily settled.
Also, this type of procedure will be cost-consuming because it involves two matters, the first one is the litigation fee and the second is the retaining fee. The litigation fee is valued at 1% of the disputed property. If such property is less than 10,000 Yuan, it will cost 50 Yuan. On the other hand, retaining fees do have minor differences depending on the lawyer.
The difference between divorce and legal separation in China
From the beginning, it is good to know that a legal separation is different from a divorce procedure in China. A legal separation in China is a temporary solution for couples who need some time to consider the aspects and the problems in their marriage, with the purpose of reconciliation and eventually the avoidance of the divorce procedure. Furthermore, a legal separation in China can take between one to five years, and if the reconciliation is not possible, the divorce proceedings will be intended. Foreign citizens married to a Chinese and deciding to divorce or to legally separate should consider that the authorities will need proof of at least one-year residency.
Divorce procedure for foreigners in China
The divorce cases in China in which foreign citizens are involved are dealt with special courts of law under certain conditions. For instance, both spouses need to agree on dissolving the marriage, must have residency in China and must respect the applicable legislation in matters of divorce in China.
If a foreign party requests a divorce by litigation, he/she has to entrust the divorce lawyersin China practicing in the People’s Republic of China. The reason is that foreign lawyers are currently not provided with the authority to represent divorce proceedings in Chinese courts unless the proceedings involve the conflicts between the Chinese laws and the law of a foreign country, division of foreign assets, and child custody etc. The legal representation of attorneys in China and the foreign state is allowed to aid in the coordination of foreign or domestic legal issues. A foreigner who has filed a divorce-related lawsuit can entrust an authorized agent and his/her participation is not necessary for the court hearing but, in general, non-foreigners have to attend the court hearing even if they entrust an agent with special authorization.
It is good to know that the divorce issued in China is recognized in any country in the world, but for more details in this sense, you can talk to our Chinese divorce lawyers who can explain the entire process and the transfer procedure in the case of foreign citizens.
Jurisdiction for International Divorce
Unlike English courts, Chinese courts do not define a specific time limit after which you can file a divorce lawsuit. In China, you can even file a divorce case the very next day after your marriage, if you think your relationship has irretrievably broken down. There is a possibility that the Chinese court may accept the divorce application if it satisfies the jurisdiction of the court. Those expats, who want to divorce within the courts of China, have to meet the following criteria:
- the marriage is registered in China;
- at least for the last year, either of the spouses has been a habitually resident in China;
- either the wife or husband is Chinese;
- if both parties are non-Chinese and they got married outside China, they can file a divorce lawsuit in China only if they have been habitually living in China for the past year.
Who can file for divorce in China?
Foreign citizens living in China, expats who got married in China and two Chinese citizens living in the country or abroad can file for divorce in China, in respect with the legislation, and particularly with the Family Law. The divorce by agreement is normally the procedure accepted by both spouses who want to separate in a friendly manner, without spending much time with the Chinese courts. In this case, the divorce settlement confirmation is the procedure that applies to foreigners living in China and wanting to separate by agreement. However, it is important to know that the courts in China are entirely responsible for each case of divorce, whether it involves Chinese citizens or foreigners with residency in mainland China. As for the procedure involved, the magistrates will validate the mutual agreement, if spouses agreed on the assets and responsibilities. Because this divorce procedure is classified as a litigation case, a civil mediation statement is issued by the courts of law in China. Do not hesitate to talk to our advisors and find out complete information about the divorce process and the requirements involved.
When is a contentious divorce declared in China?
A contentious divorce is granted in China if the spouses lived separately for at least 2 years, if the circumstances lead to the alienation of mutual affection and if one of the spouses committed bigamy. There are also other reasons and circumstances that stand at the base of a contentious divorce in China, like the following:
- one of the spouses had a drug addiction or gambling problems;
- the acts of domestic violence and sexual acts without consent will grant a contentious divorce;
- if the spouse is declared missing, the partner can file for a divorce;
- incompatibility or cohabitating with a third party are other solid reasons that stand at the base of divorce in China.
A contentious divorce is normally handled through litigation due to its complexity, but if the case requires, this solution can be the proper one instead of a mutual agreement. Our divorce lawyers in China can offer the entire help and guidance for persons interested in separation and the legal requirements in this matter.
Do I need the original marriage certificate when getting a divorce?
Yes, the marriage certificate in original is the official document necessary at the time you want to file for a divorce in China. If you are a foreign couple that got married in other countries than China but wants to divorce, you should know that the marriage certificate issued by the relevant authorities in that other country is needed. In the case of Chinese citizens, the Civil Bureau of Affairs is the institution that records the marriages in China and that issues the certificates in this sense.
Child custody after a divorce in China
Child custody in China might be complex, especially if both parents are fighting in the court of law in this direction. The magistrates will consider the needs of the children involved in a marriage, their wishes and the financial status of the parents. Verification in this sense can be made by the authorities, in order to make the right decision in the case of children, after a divorce in China. The child support or the alimony enters the obligation of the parent who did not win the custody and sums up approximately 30% of the yearly revenue. According to the Family Law in China, the alimony is paid until the child reaches 18 years of age, or if the minor is 16 and has a job or joined the military service. Just like in the case of divorce procedure, the courts of law in China are in charge of the child custody and the involved matters like alimony, visiting days, conditions, etc. It is highly recommended to solicit the support of an experienced Chinese divorce attorney if you have decided for divorce and if there are children involved after the marriage, especially for foreigners who have no idea about the applicable laws in China.
If one parent loses the fight of child custody with the verdict of the court, then he/she gets a right of child visitation. After divorce, if children are involved then only one parent can keep them physically. So the Chinese courts usually do not disturb the status quo of a child if has been living in a place for so long, unless the other party has better options of maintenance to offer not only financially, but also emotionally. Child visitation becomes difficult if the couple ended on very rotten terms and this visitation becomes more difficult if the other spouse is a foreigner. Visitation does not look like a solid solution because courts often cannot help much after the divorce and they tend not to enforce such personal rights.
Other divorce procedures in China
If divorce by agreement is adopted by a couple formed by a Chinese citizen and a foreigner, the process may take up to one month. The confirmation of the divorce is made by the people’s court in China once the court hearing is closed. Foreigners married in China who want to file for divorce can choose the divorce settlement confirmation where the main aspects of their separation are mentioned in this document issued by the court.
The divorce rate in China (2015-2019)
Here is some data on divorce rates in China:
- The overall divorce statistics of China show that this country has experienced the lowest divorce rate in 1978 when it was at 0.018%;
- The all-time high divorce rate can be seen in the year 2019, at 0.336%;
- The statistical data on the divorce rate in China from 2015 to 2019 shows that the divorce rate has gradually increased every year;
- In 2015, China has a divorce rate of 0.279%;
- In 2016 the divorce rate recorded 0.302% which is higher than the previous year;
- In 2017 this rate increased to 0.315%;
- In 2018 it hit the figure of 0.320%;
- In 2019 the divorce rate in China has reached up to 0.336% which is the highest of the previous years.
Our law firm in China can offer you legal representation if you have entered a foreign-related marriage in China and want to start the court proceedings for divorce, so please feel free to contact us.