Sometimes things just fall apart. Hey. It happens. The last thing you want is a messy, painful bureaucratic nightmare that'll follow you around for months or years. In the interest of minimizing stress, we reached out to Flora Huang, head of the international family law team at Shanghai Kaimao LLP, a Shanghai-based legal firm that deals with, among other things, expat divorces for some pointers. Let's get cracking.
[Mandatory disclaimer: This article is intended as a primer and a guide, not set legal advice. Can't stress this enough, if you show up at a Chinese court with this article as legal precedent, you're going to have a bad time. Please consult a legal professional before heading to court.]
Can I Get a Divorce in China?
Almost certainly yes, even if you got married overseas. Most couples with a connection to China can divorce, if either one or both couples hold some kind of residency in the country. Broadly, there're expat couples (two foreign citizens, whether married in China or abroad), or mixed couples (a foreign citizen married to a Chinese citizen, either in China or abroad).
For expat couples, both spouses have to agree to divorce using the Chinese courts. In addition, at least one spouse must have lived in the same district for one year before filing for divorce. For mixed couples, the case can either be handled in the city where the Chinese citizen has his or her hukou, or in Shanghai, if one spouse has lived in one district for at least one year.
- Residence permits or visas
- Police registration certificates
- Original marriage certificate (if you were married in China, this is your small red marriage book)
- Property ownership certificates (for Chinese real estate only)
- Birth certificates (for minor children only)
Note, this is not an exhaustive list.
Now we come to the cross-roads; what kind of a divorce is there? Broadly, they fall into "divorce by agreement" (ie. 'friendly' divorce) and "divorce by litigation," (ie. the courts really get involved).
How Does 'Divorce by Agreement' Work?
Better, honestly. If both parties agree to the divorce and are able to settle issues like child and spousal support payments, division of property, visitation rights, etc., without getting a judge involved, the process is fairly smooth and trouble-free. Essentially, the court just has to recognize and sign-off on the prepared legal agreement, making it official.
If the couple got married in China and at least one spouse is Chinese (ie. mixed couple), there's an 'express' procedure that might be available, where you don't even go to a court; you can register the divorce with the marriage registration office, and get a divorce certificate instead of a court divorce judgement. Remember wherever you went and got your little red marriage book? The next window over at the same office is where you can go in person as a couple to dissolve it. However, this option is not possible for expat couples.
For expat couples, it's similar, but since they're foreign citizens, the Chinese courts still have to finalize it. They use a "divorce settlement confirmation," which still counts as litigation, with a Chinese divorce lawyer taking care of drafting the divorce agreement, but is basically just the court approving the written agreement and clarifying a few facts orally, before issuing a "civil mediation statement," which is proof of divorce and accepted worldwide.
How Does 'Divorce by Litigation' Work?
If the decision to divorce isn't unanimous, the courts have to get involved to settle everything from property division, custody, and support. Be aware that in China, the divorce courts will stress negotiated settlements, offering the couples several opportunities to reach a settlement, and the option to switch to court-approved mediation. If no agreement can be reached, the court takes over and makes the final decision.
- loss of "mutual affection"
- spouses have lived separately for more than two years
- a spouse has entered into another marriage or lived with a third party
- domestic abuse or mistreatment
- a spouse has a gambling or drug problem
- a spouse is declared missing
This process takes much longer, costs much more and is more likely to end in a divorce not being granted.
How Long Does It Take?
Depends, of course, but since expat divorces in Shanghai can be handled by local district courts, a 'divorce by agreement' should take between 2-6 weeks, including preparing and drafting the relevant court documents. The actual hearing itself before a judge lasts about an hour.
Following the hearing, the court issues a formal written divorce judgement which dissolves the marriage, and each former spouse will get one original copy each.
Congratulations. You're divorced. Sorry.
Is a Chinese Divorce Valid Internationally?
Yep! A divorce done in China is valid internationally, including in Europe, the US, Canada and Australia. However, each country has its own rules and procedures for transferring the judgement from one country to another. Some countries don't even require additional steps, others might require you to provide the paperwork in your home country. Typically, it's a fairly straightforward process.
Do I Need a Lawyer?
Technically, no. You can represent yourself in court if you really want to do so, but having a legal professional with knowledge of the law and experience with the procedure can make sure nothing goes wrong. Most couples only hire one lawyer to handle the process on behalf of both couples.
How Much Does It Cost?
Obviously, rates vary depending on location and circumstances, but a typical expat divorce in Shanghai should incur fees in the 20,000-30,000rmb range. Some law firms have been known to charge 60,000-80,000rmb for expat cases. Unless you've somehow found yourself in a legal Gordian knot, that's an unreasonably high price.
Again, please consult a legal professional if you have questions or concerns about your specific situation. Shanghai Kaimao LLP offers free consultation via email and phone. They know more than us.
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