Hey Expats, Wanna Get Divorced in China?
Chinese nationals married to foreigners will have to settle any marital conflicts according to the law of the country where they live most of the time under proposals that went before Chinese lawmakers Monday. The draft was on Monday submitted to the Standing Committee of the National People’s Congress, China’s top legislature, during its bimonthly session for a second reading.
The law of their main country of residence would be applied to all disputes involving divorce or inheritance, according to a draft law on the application of laws to civil relationships involving foreign interests.
Laws in the region where the deceased lived most often would be applied to inheritance issues, except when the legacy involved fixed property, in which case the laws of the property location should be applied, said the document.
Courts in China receive more than 10,000 foreign-related civil and commercial cases every year. (China Daily)
I don’t really practice family law in China, but this issue has come up several times for expat clients of mine, not to mention friends, over the years. Although China law has permitted local courts to handle both kinds of cases (divorce and inheritance) when expats and foreign assets are involved, problems arise when you actually go to court, depending on the circumstances.
Take divorce as an example. Whether we’re talking about a marriage between an expat and a Chinese national (most common) or two expats, the Chinese court may exercise jurisdiction. However, as with a wide variety of cases involving foreign issues, Chinese judges will often look for a way out. If the case involves two expats, there’s a very good chance that the judge is not going to hear that case. For cases involving a Chinese national, particularly if the marriage was in China, then the judge will have fewer excuses for weaseling out of the case.
Then we come to the problem of assets. Returning to the expat-Chinese divorce case, this is no problem if their assets consist of, for example, a house in China. Easy to determine ownership, easy to dispose of if necessary.
When there are overseas assets in dispute, however, all bets are off. It’s not that Chinese law is silent on this issue, but consider this pragmatically. Because China does not have an aggressive system of pre-trial discovery, the judge has to rely on whatever information the two parties bring to court to identify assets. If those assets are in another country, documents attesting to ownership may be completely unfamiliar to the judge, who might not have a lot of faith in their accuracy even if they have been notarized and authenticated.1
Not easy. But let’s assume that the assets in question are identifiable, and a settlement agreement is reached that includes those assets. How easy is it going to be to enforce that agreement with respect to those overseas assets? Well, it depends on which country we’re talking about, but it won’t be easy at all. That’s one reason most folks prefer to get an agreement in the country where most of their assets are located.
I won’t go into the same discussion with respect to inheritance, but many of the same issues involving foreign assets also apply. The point is that this sort of thing tends to be messy, and judges here do not like dealing with foreign-related family law issues.
I would have to see the text of this draft law, but that excerpt suggests that the changes involve clarity on choice of law questions. In other words, which country’s law should be applied in a given case? Note that this would not change anything with respect to a Chinese court’s ability to exercise jurisdiction over a foreign-related case, it would just provide more guidance on which law should be followed.
I suppose that additional clarity is always welcome, but two things bother me:
1. A big problem in the past has been judges dragging their feet on foreign-related cases. I don’t think choice of law reform will help in this regard.
2. If foreign law will be applied to more of these types of cases, it will be less likely that a judge will hear the matter. If you take a case governed by foreign law to a Chinese court (any kind of case), there’s a very good chance your ass is going to be bounced out of there quickly.
I could be wrong, but this looks like another case of legal reform that looks good to the professors but may not end up making much of a difference in the court room.
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- The latter is a complicated process involving a notary and several additional levels of authentication, including the local Chinese consulate in the relevant country.[↩]
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I was married in Canada to a Chinese national, and divorced in Beijing. An experienced Chinese family law lawyer, especially one in a larger firm with a lot of experience in these “foreign divorces” can make a huge difference here in making sure your case is heard in a timely fashion by the local courts.
Jurisdiction regarding where the divorce is heard is determined largely by where the person being sued for divorce lives. e.g. I filed, he lived in Chaoyang, the case was heard there at a court near his home. If he had decided to move back to his hometown in another part of China, the case would have had been heard there. There was also some talk length of residency, but I met the criteria and cannot remember clearly what the rules were at this point.
I agree that it is doubtful there is much that will change in the way divorce involving at least one foreign partner is handled here, although more people may be denied access to the courts. The process is already very open to interpretation, and different districts accept or deny cases on different grounds. my lawyer lamented that neither my ex not I lived in Haidian as it has a reputation in Beijing as the “easy” place to have an amicable foreign divorce granted, often without having a case heard. In Chaoyang, most cases involving foreigners must be heard by a judge, whether there is any dispute or not.
The paperwork and notarizations are plentiful, but an entire industry has sprung up in most major North American cities with Chinese consulates to get you through all of this from a remote location. Official translation/notary/consulate run all included in one hefty yet good value fee when you consider the alternative is flying home and doing paperwork for three days OR asking a friend or family to subject themselves to the joy of getting everything together and dealing with Chinese overseas red tape on your behalf.
I do know a couple, both foreigners who live in China, who are still married on paper because neither the Chinese nor overseas system will accept their case. Their local court in China claims no jurisdiction, and the home country requires at least 6 months residency before a divorce can be filed. They’ve moved on with their lives and the understanding that whenever they can actually do the paperwork, they will. That wouldn’t have worked for me, but they seem to have made their peace with it.
Good comment!
BTW, wow, those people who are still married because no court will accept the case? That’s a bizarro family law version of a Man Without a Country or something.
Not so strange. In Japan, when divorces were frowned upon, there is a famous case that’s in the record books. A couple wanted to “untie” the knot but the judicial system didn’t want to allow it without an effort. In this case the couple separated and lived different lives (with different people) as their case went through the courts. After a meagre 12 or so years the court finally granted the final divorce decree. Unfortunately, by this time the man had passed away and it was granted post humas. They actually did him a favor by not refusing the case as “moot”.