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Ways to get a divorce in China: by divorce agreement and by divorce litigation

The People’s Republic of China has been like a sleeping giant who woke up, yawned and stretched and entered the new millennium with massive economic reforms that radically changed life for the Chinese.

Today China is the world’s largest exporter of goods and the second largest importer worldwide. It has unseated Japan for the second largest economy in the world and it is predicted that by 2020 China will outstrip the United States in gross domestic product.

With new fiscal policies, however, come significant social change and divorce reform followed on its heels. Women were granted the right to divorce their spouses in 1949 but throughout the decades that followed, divorce was frowned upon and required permission of the state, which was rarely granted.

Divorced persons were ostracized and scorned as immoral and bourgeois by the Communist party.
Divorce laws were amended in the 1980′s, which permitted divorce by agreement with relatively simple paper work at a government office for a cost of $6.00. However, to obtain a divorce you required permission from your employer. Many couples stayed together rather than face the embarrassment of disclosing their marital difficulties. Frequently, employers refused to consent.

In 2003 significant changes were made to the divorce law, eliminating the need for an employer’s approval. A ten to twenty-minute visit to a government office, the correct papers, and a $1.00 fee was all it took.

At about the same time, women were finally permitted to divorce their spouses for abuse and marital unfaithfulness. For husbands with mistresses, wives could receive financial compensation in the form of support and assets.

Since the 2003 amendments, China’s divorce rates have soared with almost two million divorces in 2010. With a population off 1.3 billion, 4500 divorces are filed every day in China.

It is suggested that China’s younger generation is fueling the divorce fires by entering into “lightning marriages” followed by even quicker divorces.

China has recently promulgated a new piece of law, entitled “The Law of PRC on Application of Laws in Foreign-related Civil Relations” (the “New Law”), aiming to guide the application of law in foreign-related matters, covering matrimony, family, succession, properties, obligations and intellectual property rights. This New Law will only take effect as from April 1, 2011.
This article introduces those provisions regarding cross-border marriages in the New Law. Other aspects of the New Law will be written later in other articles.

1. Conditions for getting married shall be determined in accordance with the laws in the place of common habitual residence of the parties; in absence thereof, with the laws of the country of their common nationality; in absence thereof, with the laws of the place in which their marriage is established provided that their marriage is established in the place of either habitual residence or nationality of one party.

2. Personal relationships between spouses shall be governed by the laws of the place of common habitual residence of the parties; in absence thereof, by the laws of the country of their common nationality.

3. In respect of the property relationship between spouses, this New Law now makes it clear that the parties have the latitude to choose the applicable laws. The applicable laws can be the law of the place of one party’s habitual residence, the law of one party’s nationality country or the law of place where the major properties are situated. In absence of agreement on the choice of applicable law, the laws in the place of common habitual residence of the parties, and in lack thereof, the laws of the country of their common nationality shall apply, in turn.

This provision is a major breakthrough in this New Law in relation to cross-border marriage. Previously, we are very cautious about choosing a foreign law as the governing law in pre-nuptial agreements if the parties get married in China since spousal relationships in terms of matrimonial properties are not considered purely a legal relationship of property nature.
Now when you get married with a Chinese woman, you may choose the laws of your home country, not necessarily Chinese laws, as the governing law for your prenuptial agreement.
 
4. Upon divorce by agreement, such divorce agreement can stipulate its applicable law to be either the laws of the place of one party’s habitual residence or the law of one party’s nationality country; in absence of such stipulation, the laws of the place of the common habitual residence of the parties shall control; in absence thereof, the laws of the country of their common nationality shall control, and in absence thereof, the laws of the place where the parties effect their divorcing formalities shall control.

5. However, if the parties get divorced through litigation, their divorce will be governed by the laws of the place of the forum court.
 
Regrettably, this New Law does not define or give guidance as to the very concept of “habitual residence”, which is often referred to in the first place in considering the applicable laws for marital issues. This question is for sure to be later tackled by China Supreme Court in its judicial interpretation. Meanwhile, it is worth a note that habitual residence may change from time to time. For example, you may get married and reside in Shenzhen for years and then both move to your home country for another few years, and accordingly your habitual residence changes from Shenzhen to your hometown outside China.

There are two basic ways to get divorced in China.

First: Divorce by agreement is the best way to end your marriage.

If you get married in China, you'd better divorce by agreement. Divorce by agreement is that the husband and wife decide to divorce on their own will and come to agreement on some related problems, and only the civil administration bureau ratifies your agreement, can you end your marriage. Advantages of divorce by agreement are as follows:

a. Prompt. It takes you only about half an hour to get your divorce certificate if you have prepared all materials required.

b. Cheap.It costs you only about 10 Yuan (RMB).

Documents you have to provide for your divorce by agreement.

Shenzhen Foreign Marriage Registration Office is in charge of foreign marriages occurred in Shenzhen.

● Mainland residents should provide the following documents and certificates while applying for divorce:

a. Registered permanent residence certificate
b. ID Card
c. Marriage certificate (issued by marriage registration office in China mainland or China's embassy /consulate to other countries)
d. Divorce agreement reached on both parties' own will
e. Two two-inch photos of each other(half-length, full-face and without hat)

Recommendations issued by employers, villager committees or residential committees aren't needed any long.

● Residents of Hongkong, Macro and Taiwan should provide the following    documents and certificates:

a. Hong Kong Resident ID Card, Macro Resident ID Card or valid ID card to prove you live in Taiwan
 
b. Laissez-passer for residents of Hongkong, Macro to commute between mainland and Hongkong , Macro or their home visit permits; or laissez-passers or valid tour certificates for Taiwan residents
 
c. Your marriage certificate (issued by marriage registration office in China mainland or China's embassy /consulate to other countries)
d. Divorce agreement singed by both parties
e. Two current two-inch photos of each other(half-length, full-face and without hat)

● Overseas Chinese and foreigners should provide the following documents while applying for divorce:

a. your valid passport or related international tour certificates.
b. Your marriage certificate (issued by marriage registration office in China mainland or China's embassy /consulate to other countries)
c. divorce agreement singed by both parties
d. two current two-inch photos of each other(half-length, full-face and without hat)

If your marriage certificate is issued by foreign governments or related authorities, your divorce can't be settled through divorce by agreement in China's civil administration bureau but through divorce by litigation procedure. With the help of experienced lawyer, it will take you only a couple of days to settle it.

Second: Divorce by litigation

If you fail to come to terms on your divorce, you can appeal for the people's court, according to the related law, to decide whether you divorce or not. The main features of divorce by litigation are as follows:

(1) Time-consuming. According to Chinese law, it takes the court of first instance less than 3 months to settle simple divorce cases and 6 months for complicated foreign ones.

If the judge doesn't support your divorce application, the plaintiff can appeal again six months later from the date on which the judgment of the first instance of a local people's court came into effect; for foreign affairs, it takes more time due to the service of the written order. As a result of above factors, it may take months even over two years on condition that the dispute can not be easily settled.

(2) cost-consuming. In China, litigation fees for divorce include two parts, litigation fees and retaining fees. Litigation fees account for 1% of the value of the property disputed. It costs you 50 Yuan if the value of property disputed is less than 10,000 Yuan. Retaining fees are generally stable with minor differences depending on the lawyers. Usually, a foreign case costs over 1000 dollars.

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, 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 partners 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.

 
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