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 Susanna, head of the international family law lawyer team at Shanghai V&T Law Firm, a Shanghai-based legal firm that deals with, among other things, expat divorces.
Let's get cracking.
[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. When an expat couple files for divorce in China, one of them must be the plaintiff and the other the defendant. The plaintiff has sued, which amounts to an election by action to accept the Chinese courts' jurisdiction. If the defendant does not object or is willing to appear in court at this point, the Chinese court can hear the divorce case. 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)
Additionally / Possibly
- 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" ('friendly' divorce) and "divorce by litigation," (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 (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. The couple should go to the Civil Affairs Bureau (上海市民政局) together to apply for a divorce; 30 days after the application, the couple must go together to civil affairs bureau and get the divorce certificate within another 30 days. Otherwise, the application will be invalidated. 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. Be aware that 30 days cooling off period is needed though.
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 is custody of a child determined?
The following principles will be used to determine custody:
- (1) If the child is under the age of two, custody will be given to the mother;
- (2) If the child is between the ages of two and eight, and the parents are unable to reach an agreement on upbringing, the court will make a decision based on the specific circumstances of both parties and the principle of the outcome most favorable to the child;
- (3) If the child is over the age of eight, the court will respect the child's will.
If one party has custody of a child after a divorce, the other party is responsible for paying all or part of the child support. The amount and timeframe for such a payment must be agreed upon by the two parties. If they are unable to agree, the Court will render a ruling.
What possessions become community property after marriage?
The following will be divided up: Wages, bonuses, and payment for personal services; profits from operations, investment, and production; income obtained through intellectual property; property received as a gift or as an inheritance.
How will the court divide community property?
Community property is generally distributed equally in China in the event of a divorce between expat spouses. According to the People's Republic of China's Civil Code, upon divorce, the spouses' community property shall be disposed of by mutual agreement; if the agreement fails, the court shall decide on the basis of the property's specific circumstances and in accordance with the principle of protecting the rights and interests of the children, the woman, and the party not at fault.
The no-fault party has the right to seek damages if any of the following circumstances lead to a divorce:
- A married person's cohabitation with a third party
- Domestic abuse
- Abuse or abandonment of any family member
- Any other significant flaw
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.
Frequently Asked Questions
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 if there is no community property involved. 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. Here's a good overview of how divorce lawyers charge.
Again, please consult a legal professional if you have questions or concerns about your specific situation. Shanghai V&T Law Firm offers free consultation via email and phone. They know more than us.
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