When handling foreign divorce cases, lawyer must first define what court will have jurisdiction over the case. Article 23 of the civil procedure law in China says that in a case where both parties are not living within the country, the plaintiff’s domicile (where they have the closest ties) and habitual residence (where they live) will have the proper court authority. In general, if the plaintiff is a Chinese citizen and the defendant is not, the plaintiff’s court will have jurisdiction; if the domicile and habitual residence is not the same place, the court located in the habitual residence will have the jurisdiction.
According to Article 13 of the civil procedure law says that an overseas Chinese marriage (Chinese citizens who have moved abroad but have not changed their nationality) that requests a divorce will go through the court where the marriage was registered in China. If one party lives within the country, the court with jurisdiction will be where the domestic party has residence. Article 14 of the civil procedure law says that if the overseas Chinese marriage was done abroad and the divorce must be under the jurisdiction of the foreign court, the parties must return there for the divorce proceedings. The court with jurisdiction is the domicile or last place of residence.
Article 15 of the civil procedure laws outlines that for Chinese citizens who live abroad and the other party lives in China, the home court of the domestic party has jurisdiction. If the foreign party initiates a lawsuit in the other country and the domestic party started a lawsuit in China, the Chinese court has jurisdiction and will not be affected by a foreign court even if the defendant filed a lawsuit elsewhere.
If one party is a Chinese citizen and the other is foreign but the marriage was registered in China and both reside in the country, the plaintiff becomes the defendant, and the defendant’s domicile or habitual residence court will have the jurisdiction.
