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How will a couple get divorced in China if both of them are foreigners?

  • Time:2020-05-24
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How will a couple get divorced in China if both of them are foreigners?

How will a couple get divorced in China if both of them are foreign citizens?

I. Whether the people's courts in the districts Shanghai have jurisdiction

(1) Any court in Shanghai has jurisdiction over and may accept any case of divorce where both the spouses are foreigners.

In detail:

According to the Notice of Shanghai High People's Court on Issuing and Distributing the "Q&A on Case-filing" (Hu GaoFa Li [2011] No. 1):

Q: What cases of marriage concerning foreign nationals are acceptable?

A: Two main factors are involved in the marriage cases concerning foreign nationals: the one is the nationality of both parties to the marriage, and the other is the place where the marriage is concluded. Chinese courts have jurisdiction over any divorce case of which either of the above two factors is not foreign related, and the court of jurisdiction should be determined according to the applicable provisions of the Civil Procedure Law. If both the two factors are foreign-related, that is, both the plaintiff and the defendant are of foreign nationality and the marriage relationship was concluded abroad, the people's court may accept the case only when both the plaintiff and the defendant choose to accept the jurisdiction of the court of our country and it is necessary for the court to settle the dispute.

Therefore, the district court in any district of Shanghai (such as Jing'an District) will accept the petition for divorce if both parties to the divorce have actually lived in such district for one year and both are willing to accept the jurisdiction of such district court.

Note: (1) Actual residence for one year. Each of the parties is required to provide the court with the certificate of one year's residence issued by the property management company or the residents' committee of the community where such party is living, or the documents like working visa, residence permit,  etc., so as to determine that the specific district court with jurisdiction.

(2) Both parties of the divorce must jointly (agree to) accept the jurisdiction of the court in China. Both parties are required to provide the court with a "consent to jurisdiction of XXX District Court" signed in person or jointly sign a "Divorce Petition" before the judge.

(II) In other provinces which have no clear regulations as in Shanghai in respect of the jurisdiction over divorce cases in which both parties are foreigners,  it is necessary to communicate with the local court for confirmation of the jurisdiction in practice.

In practice, some local courts accept similar cases, while others remain silent (neither accepting nor explicitly rejecting such cases). According to the general theory, there are several reasons for the parties to request the local court to accept the case:

1. The above "Q&A on Case-filing" issued by Shanghai High People's Court which the parties may request the local court to refer to.

As the legislative concept of Shanghai High People's Court is relatively advanced, the local courts may refer to and learn from its practice if there is no clear provision in their local law. This is very common in practice.

2. According to the Civil Procedure Law of the People's Republic of China and the applicable provisions of its judicial interpretations, either party may seek jurisdiction of the local court of the place where his/her "habitual residence" is located.

In detail:

Article 21 of the Civil Procedure Law of the People's Republic of China states: A civil lawsuit filed against a citizen shall be under the jurisdiction of the people's court of the district where the defendant's domicile is located or where its habitual residence is located if the habitual residence and the domicile are not in the same district."

Article 22 of the Civil Procedure Law of the People's Republic of China states: The following civil proceedings shall be under the jurisdiction of the people's court of the place where the plaintiff‘'s domicile is located or where its habitual residence is located if the habitual residence and the domicile are not in the same district: (a) any proceedings in respect of identity relations filed against any person not residing within the territory of the People's Republic of China;

According to the above provisions, whether a Chinese court has jurisdiction over the divorce dispute in which both the spouses are foreigners (or stateless persons) depends on whether either spouse has a habitual residence in China. As long as either spouse has a habitual residence in China, Chinese courts will have jurisdiction.

In addition, Article 15 of the Interpretations of the Supreme People's Court on Issues Concerning the Law of the People's Republic of China on the Application of Laws to Foreign-related Civil Relations states, The place where an individual has resided/has been residing continuously for more than one year before the creation, alteration or termination of the foreign-related civil relations and which has served/has been serving as the center of such individual's life, may be presumed by the people's court as the habitual residence of such individual under the Law of the People's Republic of China on the Application of Laws to Foreign-related Civil Relation, except in case of medical treatment, labor dispatch, official business, etc.

Therefore, in a nutshell, "habitual residence" refers to a place where both parties to a divorce have lived for one year in succession, and either of them may file a claim for divorce before the local court.

3. The provisions applicable to Chinese citizens habitating overseas shall apply mutatis mutandis to foreign citizens of Chinese origin.

According to the provisions of the Overseas Chinese Affairs Office of the State Council on Defining the Identity of Chinese Nationals Residing Abroad, Foreign Citizen of Chinese Origin, Returned Overseas Chinese, and the Family Members of Overseas Chinese, A "Chinese citizen habitating overseas" refers to a Chinese citizen admitted for long-term or permanent residence in the country of residence, and a "foreign citizen of Chinese origin"  refers to a foreign citizen who had Chinese nationality or a descendant of such a foreign citizen.

Article 14 of the Interpretations of the Supreme People's Court on the Application of the Civil Procedure Law of the people's Republic of China states, In case of a claim for divorce filed by either spouses of a couple who are Chinese citizen habitating and married overseas, the people's court of either spouse's original place of residence or last place of residence in the PRC shall have jurisdiction if the court of the country of his/her current residence refuses to accept the case on the ground that it must be under the jurisdiction of the court of the country of their nationalities.

Therefore, it is clearly stated that any divorce case filed before a Chinese court involving Chinese nationals residing abroad is under the jurisdiction of people's court of their last place of residence in China. However, Chinese law does not provide for the jurisdiction of divorce cases invoving foreign citizens of Chinese origin.

We propose that foreign citizens of Chinese origin filing for divorce may request the local court to refer to the provisions applicable to Chinese nationals residing abroad.

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