A foreign-related divorce (涉外离婚) is any divorce with a foreign element: one or both spouses are foreign nationals, one lives abroad, the marriage was registered outside mainland China, or key assets are overseas. Hong Kong, Macau and Taiwan matters are generally handled by reference to similar rules. Such divorces can proceed by agreement at a designated marriage registry (if the marriage was registered in mainland China and both can appear) or by litigation in a people's court.
Why it matters
Several extra questions arise. Jurisdiction: Chinese courts generally hear the case where the defendant is domiciled or habitually resident in China, with special rules for Chinese citizens abroad. Applicable law: under the Law on Choice of Law for Foreign-Related Civil Relations, a litigation divorce is governed by the law of the forum, so Chinese courts apply Chinese law; for divorce by agreement the parties may choose the law of either party's habitual residence or nationality. Service: serving a spouse abroad through the Hague Service Convention or diplomatic channels can take many months, and cases where a party is abroad are not bound by normal time limits. Recognition: a Chinese judgment may need to be recognised abroad, and a foreign one in China.
How it works in practice
An Italian man married a Chinese woman in Rome; they later lived in Shenzhen. When the marriage broke down, a registry divorce was not available because the marriage was registered abroad. He filed in the Shenzhen court where they both lived; the court applied Chinese law, divided their Shenzhen flat and decided custody. He later used the certified judgment and translation to update his civil status in Italy.
Common mistakes
- Filing in two countries at once without a strategy
- Assuming the law of your home country will apply in a Chinese court
- Underestimating the time needed for service abroad
- Forgetting that the judgment may need recognition where assets or the other spouse are located
- Ignoring translation and apostille requirements for foreign documents