Determining the correct court jurisdiction for a foreign related divorce case is highly important for litigation proceedings. There are three main criteria for processing a foreign divorce:
1. The defendant’s place of residence
The basic principle in civil litigation of “the plaintiff is the defendant” also applies to foreign related divorce cases. Article 21 of the civil procedure law states that civil proceedings against citizens are under the jurisdiction of court located in a defendant’s domiciled home (where a person has the “closest ties”). If this is different from where they currently live, then the court in the place of residence will have the jurisdiction. This rule is used in domestic cases but there are other factors to consider for a foreign divorce case when one of the parties is abroad.
2. The plaintiff’s domiciled residence
Article 22 of the civil procedure law states that civil proceedings are under the jurisdiction of the court where the plaintiff is domiciled unless it is different from where they live, then it will be under the place of residency’s court during a lawsuit involving a person who is not living in China. If the plaintiff is a Chinese citizen or lives within the country and the defendant is a foreigner or lives in another country, the plaintiff may sue for divorce where they are domiciled.
3. Marriage Association standards
Article 13 of the civil procedures law states that Chinese citizens who have married and settled in another country, that country’s court cannot accept an application for divorce and the party shall apply to the Chinese court that has the jurisdiction of where the marriage was registered or where one party lives, if one lives abroad and one in China. This is generally applicable to overseas Chinese who request a divorce.
The above are general guidelines that come from stated legal provisions. Specific cases may be complex and require additional attention. Parties should consult with a divorce lawyer based on their individual circumstances.
