Divorce Litigation

A marriage in China between a foreigner and a Chinese citizen or between two foreigners is considered a "foreign-related marriage". According to Article 147 of the General Principles of the Civil Law of the Peoples Republic of China, marriage of a Chinese citizen to a foreigner shall be bound by the law of the place where they get married. Therefore, partners contemplating a foreign-related marriage in China must follow the procedures stipulated by Chinese law. Marriages in China, regardless of the nationality of those being married, are registered according to the laws of China. It is important to understand that neither diplomats nor consulate officials of the foreigners own country, nor clergy of any country, have the authority to perform marriages in China.

Under the current marriage law of the Peoples Republic of China, marriage registration is administered by the local offices of civil affairs. If one of the partners is a Chinese citizen, the appropriate marriage registration office shall be the one designated by the province, autonomous region, or municipality directly under the Central Government, and the one that is stationed in the locality where the residency (hukou) of the Chinese citizen is registered. If both partners are foreigners, the registration office shall be the one located in the city where one of them lives or both of them live. Generally speaking, at least one of the partners must reside in China. Two foreigners on a temporary visit with tourist visas shall not be able to register to marry in China.

According to current Chinese law, a foreigner cannot marry a Chinese citizen who falls within one of the following categories:

(1) military personnel in active service, diplomatic personnel, public security personnel, confidentiality personnel, or any person who possesses important and confidential information;

(2) persons who are at present receiving reeducation through labor or serving a sentence.

To apply for marriage registration, partners of the contemplated marriage shall appear together at the marriage registration office. They should be prepared to submit all required documents, certificates, and photographs that establish the identity, residential status, as well as the marriageability of each of them. All documents in a foreign language must be translated into Chinese at the applicants own expense. The authenticity of translation shall be certified by a Chinese notary public.

Upon receipt of an application to register a marriage, the marriage registration office will ascertain that both parties have reached legal age (generally 22 for men and 20 for women), and that both parties are single and otherwise free to marry. Persons who have been married previously must submit authentic and valid documents of final divorce or ex-spouses death certificate if widowed. There will be a fee charged for the registration of a marriage. In addition, both partners applying for marriage registration shall also present the pre-marital health check-up report signed and issued by a hospital designated by the marriage registration office. Upon confirming that the application conforms to the Marriage Law of the Peoples Republic of China and to the required procedures, the registration office shall give the applicants the permission to register and complete the registration process within one month. Once the registration is completed, the married couple will be issued a marriage certificate.

The General Principles of the Civil Law of the Peoples Republic of China, Article 147, also set forth the principle that a divorce shall be bound by the law of the place where a court accepts the case. According to the Marriage Law of Peoples Republic of China, if both partners of a marriage seek a divorce voluntarily, they may go to the appropriate marriage registration office to file the registration for divorce. If one of the partners requests a divorce and the other does not agree, the former can then file a divorce suit with the court. But registration for divorce with the marriage registration office is not applicable to a foreign-related marriage. All cases of divorce in China concerning a foreign-related marriage must be filed with the court. In order for the Chinese court to accept such a case, at least one of the partners of the marriage must either have Chinese residency and be physically present in the territory of the Peoples Republic of China or have resided continuously in China for at least one year. Provided the above requirement is met, in case the other partner of the marriage resides outside China, the one requesting a divorce may file a divorce suit with the intermediate peoples court in the place where he or she lives, or where his or her residency is registered. Otherwise, if the partner requesting a divorce lives overseas, he or she may file the suit with the intermediate peoples court in the place where either the other partner of the marriage lives or that partners residency is registered.

In the event a couple wishes to resume their marriage in China after divorcing, they must go through the normal marriage registration procedures as described above.

 

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