Free Legal Advice Regarding Divorce from a Divorce Lawyer in China
The two main methods of ending a marriage in China are by mutual agreement and by litigation. In order to pick the right solution, the couples who intend to dissolve their marriage need to have a good understanding of the rules and regulations guiding the divorce processes, especially where financial properties and children are involved.
Divorce by Agreement
The simplest and easiest way of terminating a marriage in China is through a method called divorce by agreement. Under such circumstances, the couple agrees that, because of various reasons, the marriage union cannot work. In such cases, the couple only needs the civil administration bureau to consent to the divorce.
This method of dissolving a marriage has the following advantages:
· It is convenient: It evades a tiresome and time-wasting lawsuit;
· It is fast: Once the couple agrees on matters concerning children and marital property, the prepared documents can be forwarded straight to the Civil Affairs Office to receive a divorce certificate;
· It is less expensive: This process enables the couple to avoid litigation costs, such as court fees, certification/notarization fees, litigation fees, service fees, and lawyer’s fees.
If a spouse is a Chinese citizen, and the marriage was conducted in China, the divorce procedure is always easy. When filing for divorce, the couple is required to provide the following documents:
Ø Divorce agreement;
Ø Identification documents;
Ø Residence certificate;
Ø Marriage certificate.
Exceptional guidelines apply where the marriage took place in a foreign nation, and a foreign government gave out the certificate of marriage. Under such cases, the only applicable divorce procedure is the divorce by litigation. The help of a Chinese family lawyer can, however, make the process straightforward.
Divorce by Litigation
When the couple cannot agree on how to end their marriage, the people’s Court in China can settle the matter. Courts in China usually decide the divorce litigation when both or one of the spouses is a Chinese citizen. The divorce by litigation is not only lengthy but also costly. In the event that the decision of the court is against the wishes of the aggrieved party, the judgment can be “appealed” six months after its issuance.
How a Divorce differs from a Legal Separation in China
In order to avoid a divorce procedure, the law allows what is called a legal separation. This is a period within which the couple is allowed to reflect on issues and challenges in their marriage. In China, if the couple cannot reconcile within two years, then the other party may use such separation as legal basis to initiate divorce proceedings.
If a foreign citizen is married to a Chinese, then they cannot divorce without providing evidence of residence in China of the defendant for at least one year.
Legal Grounds for Divorce in China
When deciding on divorce cases, Courts in China adhere strictly to the principle of "irretrievable breakdown of the marriage." A couple seeking for dissolution of their marriage can cite any of the following reasons to support the proclamation of irretrievable breakdown of their marriage:
· One of the marriage partners has committed adultery or is living together with another person as husband or wife;
· Persistent intolerable behaviors of drug addiction and gambling despite several warnings of one party;
· Maltreatment, domestic violence, or desertion of one partner by another;
· When an incompatibility causes a separation of the two marriage partners for more than two full years;
· Any other conditions that cause distancing of mutual affection.
Child Custody after Divorce in China
The 51 articles of China Marriage Law does not mention the term “custody.” It, however, indicates the words "support” or “maintenance.” The party that is given the child to live with assumes the direct maintenance responsibilities of the child.
Custody of children after divorce in Chinese law is now illustrated clearly in the China General Provisions of The civil Code. Here, both parents are still viewed as custodians of their children even after divorce. Courts in China, however, award physical custody to one partner only. Ironically, the parent having physical custody takes the legal responsibility of crimes committed by the child. This means joint custody does not imply joint liability in China. However, if the party having physical custody of the child is unable to pay damages to the child's misdemeanors, the other parent can be called to pay.
Obtaining Child Custody after Divorce
Generally, the courts will award custody to the spouse, who proves that they will take care of the child in the best way possible. The courts refrain from breaking the status of the miner’s life. For divorce, cases involving a legal tussle over custody of children, the spouse aiming at winning the fight should develop a favorable status of the children’s lives before deciding to divorce, for example:
· The financial well-being of the children;
· The length of time the children have been living with the partner;
· Availability of grandparents and other close family members to assist in parenting.
Marital Property Division for Divorce in China
One of the most challenging divorce squabbles is the division of marital property. However, Chinese law does not allow such fights if the property in question is non-marital. Generally, every asset acquired by a spouse before marriage is not expected to be divided after divorce. However, marital property is subdivided equitably on a 50-50 basis after divorce since such property is under joint ownership in view of the law.
Under Chinese law, joint ownership of the marital property has two aspects:
· Mutual agreement: The law allows the couple to agree on how marital properties will be shared. In the event that the couple fails to agree, the Marriage Law of the People’s Republic of China stipulates that the court shall take over the subdivision, by considering all aspects of the property and adhering to the principle of favoring the wife and the children, putting the interest of the children and wife first.
· Operation of law: The husband and wife can agree to own separate assets they acquired during their marriage. However, if one spouse has spent substantively more effort on assisting the other party, supporting the children, caring for the old, etc., the party can ask for compensation from the other party at the time of the dissolution of their marriage.
As you deliberate on how to go about your divorce process, make sure that you acquaint yourself with some basic divorce laws and procedures. This will help you to avoid landing into problems that may jeopardize not only your financial interests (marital property and income) but also the interests of your children and your relationship with them.
Author: China Divorce Lawyer