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foreign-related marriage and divorce 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.

As an international metropolis, there is an increasing rate of international marriages-between Chinese and foreigner, as well as foreigners, meanwhile, international divorces are also on the rise. As a result of different culture backgrounds, language barriers, discrepancies in life styles, thinking and conception, and so on, both parties can’t acclimatize himself or herself to the other’s which is always leading to the mutual affection no longer existing.

As a way of divorce, divorce by agreement is popular if both of the parties can reach an agreement on related matters involved in divorce.

 Mr. M from US. And Ms. W from Henan Province ,China got their divorce certificate at the office of Foreign Related Marriage Registration, Zhengzhou Municipal Civil Administration Bureau, Henan Province.

During the course of dealing the foreign related marriage cases, there are several points you should pay attention to in case you have to face up to the facts.

I. Who is entitled to deal with foreign related divorces registration in China?

In China, only the couples married (getting the marriage certificate through registration) in China, can their agreement divorce through registration be settled in China. Generally, only one foreign related marriage registration office is established in the capitals of provinces or municipalities directly under the jurisdiction of central government who is responsible for all foreign related marriages registration.

II. Documents Involved in the Process of Divorce Registration

According to the requirements of the office of Foreign Related Marriage Registration, Zhengzhou Municipal Civil Administration Bureau, Henan Province, the documents required while applying for the divorce registration are as followed:

i. Foreign party’s original passport and original marriage certificate (the foreign related marriage registration office will keep the photocopies of the two),

ii. Chinese party’s original Identification Card, original census register book (Hukou Bu) and original marriage certificate (the foreign related marriage registration office will keep the photocopies of the three)

iii. Three copies of divorce agreement reached by both parties respectively in Chinese and English version, and the English version should be translated by specially appointed translation organization, with the organization’s seal and both the two versions are sealed by the stamp of the special appointed translation organization.

iv. Two two-inch photos of each other (half-length, full-face and without hat)

v. Nine Yuan RMB

III. Procedures to Divorce Registration

i. Submitting the documents for the preparatory examination,

ii. Accepting the application if the documents submitted is up to the requirements formally,

iii. Censoring the documents and the will of two parties and asking the two parities to fill the divorce application (mainly involved in basic information about both parties),

iv. Confirming the divorce if all documents are up to all requirements and on the basis of both parties’ free will

﹡Before issuing the divorce certificate, the both parties will be required to sign the declaration on the declaration paper to confirmation they have agreed and decide to divorce.

IV. The of a Lawyer During the Course of Divorce Registration

   Although both parties have reached the agreement on divorce, property division, children maintenance, and some other related matters involved in divorce, however, it is possible for either party to change her/his decision before the divorce certificate is issued by the foreign related marriage registration office. In the process of dealing the foreign related divorce cases, we’ll encounter various situations that we can not expect in advance. Especially if one party is eager to end the marriage without any affection, using this kind of urgent mind, the other party will demand more property.

As a lawyer, before signing any document, a lawyer should negotiate with the other party from the point of intermediation equally and offer some effective measures for the parties’ reference.

While, when they have reached the divorce agreement and decided to go to the marriage registration office to apply for the divorce certificate, the lawyer should direct the parties to sign some related documents and apply for that. Once some urgency occurs during the course of the case, the lawyer will help the parties keep calm. And at this time, one party usually use the other party’s mind of eagering to divorce to demand more properties when divorce, at this time, the lawyer will tell the party related legal result and legal risks.

Anyway, during the course of the preceding divorce registration, the lawyer as an instructor will help the two parties reach an fruitful divorce agreement and give them a direction in the proceeding the divorce registration.

 

1. Marriage registration is a necessary procedure for a legal marriage.
If a foreigner marries a Chinese national within the Chinese territory, in line with China' s Marriage Law, both parties should register with the Division of Foreign-Related Marriage Registration of the Beijing Civil Affairs Bureau. The foreign party should produce the following documents and materials:
(1) Valid passport or other valid international travel documents;
(2) Proof issued by his/her country in China that s/he has no spouse.


2. If a foreigner and his/her Chinese spouse voluntarily decide to divorce in China, both parties should go to the Division of Foreign-Related Marriage Registration of the Beijing Civil Affairs Bureau to register for divorce. The foreigner should produce the following documents and materials:
(1) Marriage Certificate.
(2) Divorce Agreement signed by both parties;
(3) Valid passport and other valid international travel documents.
 
A marriage in China between a foreigner and a Chinese citizen or between two foreigners is considered a "foreign-related marriage". According to Article 147 of the General Principles of the Civil Law of the People's Republic of China, marriage of a Chinese citizen to a foreigner shall be bound by the law of the place where they get married. Therefore, partners contemplating a foreign-related marriage in China must follow the procedures stipulated by Chinese law. Marriages in China, regardless of the nationality of those being married, are registered according to the laws of China. It is important to understand that neither diplomats nor consulate officials of the foreigner's own country, nor clergy of any country, have the authority to perform marriages in China.

Under the current marriage law of the People's Republic of China, marriage registration is administered by the local offices of civil affairs. If one of the partners is a Chinese citizen, the appropriate marriage registration office shall be the one designated by the province, autonomous region, or municipality directly under the Central Government, and the one that is stationed in the locality where the residency (hukou) of the Chinese citizen is registered. If both partners are foreigners, the registration office shall be the one located in the city where one of them lives or both of them live. Generally speaking, at least one of the partners must reside in China. Two foreigners on a temporary visit with tourist visas shall not be able to register to marry in China.

According to current Chinese law, a foreigner cannot marry a Chinese citizen who falls within one of the following categories:

(1) military personnel in active service, diplomatic personnel, public security personnel, confidentiality personnel, or any person who possesses important and confidential information;

(2) persons who are at present receiving reeducation through labor or serving a sentence.

To apply for marriage registration, partners of the contemplated marriage shall appear together at the marriage registration office. They should be prepared to submit all required documents, certificates, and photographs that establish the identity, residential status, as well as the marriageability of each of them. All documents in a foreign language must be translated into Chinese at the applicants' own expense. The authenticity of translation shall be certified by a Chinese notary public.

Upon receipt of an application to register a marriage, the marriage registration office will ascertain that both parties have reached legal age (generally 22 for men and 20 for women), and that both parties are single and otherwise free to marry. Persons who have been married previously must submit authentic and valid documents of final divorce or ex-spouse's death certificate if widowed. There will be a fee charged for the registration of a marriage. In addition, both partners applying for marriage registration shall also present the pre-marital health check-up report signed and issued by a hospital designated by the marriage registration office. Upon confirming that the application conforms to the Marriage Law of the People's Republic of China and to the required procedures, the registration office shall give the applicants the permission to register and complete the registration process within one month. Once the registration is completed, the married couple will be issued a marriage certificate.

The General Principles of the Civil Law of the People's Republic of China, Article 147, also set forth the principle that a divorce shall be bound by the law of the place where a court accepts the case. According to the Marriage Law of People's Republic of China, if both partners of a marriage seek a divorce voluntarily, they may go to the appropriate marriage registration office to file the registration for divorce. If one of the partners requests a divorce and the other does not agree, the former can then file a divorce suit with the court. But registration for divorce with the marriage registration office is not applicable to a foreign-related marriage. All cases of divorce in China concerning a foreign-related marriage must be filed with the court. In order for the Chinese court to accept such a case, at least one of the partners of the marriage must either have Chinese residency and be physically present in the territory of the People's Republic of China or have resided continuously in China for at least one year. Provided the above requirement is met, in case the other partner of the marriage resides outside China, the one requesting a divorce may file a divorce suit with the intermediate people's court in the place where he or she lives, or where his or her residency is registered. Otherwise, if the partner requesting a divorce lives overseas, he or she may file the suit with the intermediate people's court in the place where either the other partner of the marriage lives or that partner's residency is registered.

In the event a couple wishes to resume their marriage in China after divorcing, they must go through the normal marriage registration procedures as described above.
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.

 
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