We all expect that our marriages would continue forever when we get married, whether we're foreign or Chinese, marrying here or overseas. Unfortunately, for many couples, "forever" is no longer a reality, since divorce, which has long been the end result of a major number of marriages in the West, is on the increase in China as well. It is no surprise that there is an increase in the use of pre-nuptial agreements in China.

Because intercultural marriages can face additional communication and extended family challenges, it is unsurprising that the divorce rate for marriages between persons from different countries is greater than the general population.

Divorce is a very common term and used a lot in our daily lives. Even then, people aren’t always aware about what it actually legally means. Divorce is the legal dissolution of a marriage and the releasing of the parties from all marital responsibilities.

The Chinese legal system recognizes two types of divorce: registration or agreement divorce and litigation divorce.

The divorce procedure in China is quite similar to that in other countries and can be used even if the marriage was concluded outside of China.  There may be, however, some differences based on the married couple's citizenship and residence. This can be divided into three groups:

i. Both spouses who are expats are permitted to divorce in China, regardless of where their marriage was legally created.

ii. If one spouse is a foreigner married to a Chinese citizen, they can divorce even if neither of them reside in China and the marriage took place either in China or overseas.

iii. If the marriage is between two Chinese citizens who live overseas or in China, they can travel even if they do not live in China.

What are the different methods of divorce

Divorce by agreement or registration

A divorce by agreement occurs when the husband and wife agree to divorce willingly and file for divorce registration at the Marriage Registration Office in person. It can only happen if at least one of the divorced spouses is a Chinese citizen who was married in China and agreed to divorce.

Parties to a divorce by agreement can agree on various matters resulting from the divorce, such as marriage property split, child support, alimony, and visitation rights without involving the Chinese courts.

For a separated couple, divorce by agreement is the best choice. Both parties prepare and sign a divorce agreement before going to court.  The divorce agreement is understandably then the most crucial part of a mutually accepted divorce.  It will be accepted largely because (presumably) the couples should have had ample cooling down time first before drafting and agree to divorce agreement.

Why is it the better alternative

Divorce by consent and agreement is considered to be the easiest and the most convenient way of ending a marriage. If you have all of the necessary paperwork, getting your divorce certificate will just take you around half an hour.

What are the documents one must have

As mentioned above, having the required documents ready makes this process very quick and straightforward. The following are the documents which you must keep in hand before proceeding with the divorce by agreement:

a. ID Card

b. Registered permanent residence certificate

c. Marriage certificate (issued by marriage registration office in China mainland or China's embassy /consulate to other countries)

d. Divorce agreement mutually agreed by both parties

e. Two two-inch photos of each other(half-length, full-face and without hat)

How does divorce by mutual consent work

The entire process is very easy and streamlined. The following steps are the ones which you should follow in order to avoid any possible errors:

Step 1

The husband and wife discuss the conditions of the divorce, which must include property split, support, and, if applicable, child custody. If the divorce agreement is written in a language other than Chinese, it must be translated into Chinese. The parties are then given a copy of the agreement to sign before it is presented to the court for divorce registration.

Step 2

The husband and wife file a divorce petition in person.

Step 3

There is a 30-day cooling-off period after submitting an application for registration. Either the husband or the wife can withdraw the divorce application during this time.

Step 4

Both the husband and wife must be present for the marriage registration authorities to apply for the divorce certificate in person within 30 days of the cooling-off period expiring.

Step 5

The marriage registration authority verifies that both parties freely applied for the divorce, that the divorce has been successfully registered, and that the divorce certificate has been issued. The marriage has been declared null and void.

Chinese courts are not needed in a divorce by agreement; instead, the divorce is simply registered at the Marriage Registration Office, a local Civil Affairs Bureau agency. Both spouses are legally bound by the divorce agreement, which will then generally be enforced in most other countries’ courts around the world.

How are expatriates treated in this case

Expatriates in China from countries that do not recognize 'divorce by agreement' may still be able to make use of this method in China. The Chinese legal procedure is known as "divorce settlement confirmation." The court simply accepts the joint agreement produced by the spouses.

There are a few prerequisites that must be satisfied if expatriates wish to apply for divorce in China:

i. At least one of the couples must have lived in the same Chinese city, ideally at the same residence, for at least a year.

ii. The couple decides to be divorced through the Chinese legal system.

iii. Both couples want to get divorced. This is only suggested, but it is not essential.

Remember, a divorce granted in China is lawful and considered legal and binding outside of China as well. You will not have to go through the divorce process again in your native country after it is completed in China.

(2) Litigation-based divorce

When both spouses are Chinese and cannot agree to dissolve the marriage, one of them can file a divorce petition with a Chinese people's court, which will make the decision.  Note a divorce in China is recognized in most other countries including in Europe and the United States.

Divorce through litigation entails additional stages and takes longer. Divorce cases of a basic nature require fewer than three months to resolve in these instances, but difficult international cases might take up to six months.

The plaintiff has six months from the date of the verdict to appeal if the court rules against divorce. Foreign affairs, on the other hand, take longer owing to the written order's service. Depending on whether or not the matter may be readily resolved, a divorce via litigation may take months or even two years.

When a court receives a divorce petition and determines that the marriage has irreversibly broken down, it grants the divorce. The burden of proof is on the divorce petitioner to show that the marriage has irreversibly broken down.

When a court issues a divorce judgment or a court mediation agreement takes effect, the marriage is dissolved.

What are conditions necessary for divorce through litigation

i. Domestic violence, abandoning the spouse or family members.

ii. A spouse commits bigamy or cohabits with another person.

iii. A spouse indulges in social vices like gambling and drug abuse even after dissuasion.

iv. The couple has lived apart for at least two years as a result of emotional discord.

v. Breakdown of the relationship or loss of affection

vi. A spouse is declared missing.

There are a few limits in a divorce through litigation aimed to safeguard women and military personnel. To safeguard women, the husband is prohibited from seeking a divorce while she is pregnant, within one year of the birth, or within six months of the termination of the pregnancy unless the woman initiates the divorce proceeding. A soldier's active-duty spouse must seek soldier’s agreement for divorce.

Even in traditional divorce cases, the Chinese courts strongly try to encourage both sides to reach a negotiated settlement. The judge will question the spouses on a frequent basis if a settlement looks acceptable, and if so, if they would be prepared to switch to court-approved mediation to reach an agreement. If this is not practicable, the court must issue a definitive ruling.

Conclusion

The choice of the divorce method is not in your hands alone and it completely depends upon the circumstances you are in. It should be noted that there is no requirement to hire a lawyer (though often a good idea) and you are allowed to represent yourself in the court instead. When it comes to moving forward with a divorce, you'll need to get prepared and gather a lot of information. There may be a lot of things you need to acquire depending on your situation, but performing the onerous work of gathering this information upfront means you'll have a smoother experience as you progress through your specific set of circumstances.

Because some spouses have been known to hide asset information, especially if a divorce threatens to get ugly, it's important to acquire documents and information before formally asking for divorce.

Check that all of your personal information is up to date and accurate, then gather information about your stock, bond, and mutual fund assets, real estate, mortgages, bank accounts, credit cards, retirement accounts, tax returns, business tax returns, personal property, business holdings, details on any lawsuits you may be involved in, and other related financial information that will be used to divide assets between you and your spouse later.

Please contact us (inquiries@chinalawsolutions.com) to get in touch with an experienced lawyer who can assist with preparing for a divorce, negotiating a divorce agreement with your spouse, or filing for the divorce in court in China.  All inquiries are treated as confidential.