Divorce by agreement refers to the voluntary dissipation of marriage between the two parties. When an agreement on divorce related issues has been reached, it is easy to register for a divorce with the court. This agreement avoids a tedious and time-consuming lawsuit and is convenient. On the other hand, there are disadvantages to this type of divorce. Following are comparing of the pros and cons:
1. The advantages of divorce based on foreign agreements
(1) It doesn’t take a lot of time. If both parties can agree on marital property and children, the prepared materials that are required can go directly to the Civil Affairs Office to obtain a divorce certificate. Whereas, litigation can take a long time such as in the case of unknown location of a party. The announcement period is also 3 months, which adds on to the duration of the case.
(2) It costs less. If the parties can make a mutual divorce agreement, it only costs about 10RMB to register the divorce with the Civil Affairs Office. But if the divorce is handled through a lawsuit, there will be a litigation fee, service fee, court fee, and notarization/certification fee. If a professional lawyer is involved, the lawyer’s fee will also be a huge additional expense.
2. The disadvantages of divorce based on foreign agreements
(1) The divorce does not have direct legal effect even though the divorce agreement is bound to the two parties. If a judgment is made through a lawsuit, the court can enforce the decree whereas a divorce agreement cannot. It would be necessary to apply to the court for execution in order for the court to confirm if the agreement is enforceable.
(2) The legal repercussions of divorce will not necessarily be in effect with an agreement. On one hand, some countries such as Hong Kong do not recognize a divorce agreement. On the other hand, some foreign parties think that with the agreement the divorce is final, but that is not always true. According to China’s laws, legal consequences of the divorce are only in effect after the Civil Affairs Office completes the divorce registration procedure.
(3) The contents of the divorce agreement are uncertain. If one party returns to contest the property division, the other content may no longer have any legal effect. The 14th Article of the marriage law in China states “the property division within the divorce agreement is conditional on the registration of divorce through the court. If the two parties agree that the divorce is not complete and one party regresses in the divorce proceedings, the court should deem the property division agreement ineffective and then will be divided equally between the two parties.”
In conclusion, the divorce agreement in a foreign related case has advantages and disadvantages. It is important to be truthful and a professional foreign marriage lawyer can give proper legal guidance and advice based on the particular situation.