Choice of Divorce Venue
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Choice of Divorce Venue
文/ 李丹 律师
When a foreign related divorce arises, the first question is always where is the best place to solve the divorce to the best interest of the party or parties involved and whether the best place is qualified to get the divorce issue solved.
The first is the decision to be made by either party or the couple together after evaluation of all the factors involved. Of course, to work out a best choice to both parties’ satisfaction needs the joint efforts from the lawyers from two different countries.
The second is about jurisdiction, ie., whether the couple can get divorced in compliance of the laws of the place where they choose. Sometimes, the best choice turns out the impossible choice as the courts in the place the couple chooses to divorce have no jurisdiction.
This article will hopefully give the readers some idea about under what circumstances the Chinese law have jurisdiction over so that if unfortunately, a divorce is unavoidable, which place and what court will be the best choice for the party or parties involved.
First of all, whenever there is a Chinese citizen involved in the marriage, the Chinese law always has jurisdiction over the divorce. Second, the Chinese court, so far, only exercises jurisdiction over the assets inside China. Whenever assets outside of China are involved, make sure talk to a local lawyer about the possibility of assets division in the future after a divorce judgment is granted in China. Last, always check with the local lawyer of the foreign country whether the divorce judgment in China will get acknowledged by the law in such a foreign country.
For a marriage between a Chinese citizen and a foreign citizen, if the marriage takes place in China through the registration at the qualified civil affairs bureau, the divorce, if an agreement is reached between the two, can be registered by the same civil affairs bureau also. Take care, when that happens, make sure the divorce agreement is filed for record at the civil affairs bureau and make sure the divorce agreement has nothing missing.
For a marriage between a Chinese and a foreigner that takes place outside of China, the divorce, even if an agreement is reached, has to be granted by a valid judgment at court or by a valid mediation award issued by the court. Take care more often than not, the mediation award issued by Chinese court will not be acknowledged under foreign laws, therefore, a valid judgment is a must. Good news is that with a divorce agreement reached by the couples, a divorce judgment will be easily and quickly obtained.
When no agreement is reached between the couple, a Chinese and a foreigner, the three factors need to be taken into fact before the decision is made, at which court and in what country shall the divorce be filed:
01
what you are looking for from the lawsuit, a quick divorce or the child custody or as many assets as possible
China will not be a good place for a quick divorce when the parties fail to reach an agreement about divorce but a good place to play the delay strategy.
China will not be a good place to fight for the child custody as long as the child stays with one party only during the separation but a good place to save money for child raising as the law only supports the payment necessary for the child basic needs instead of luxurious needs and no alimony needs to be paid to the party who raises the child directly for the loss she or he has suffered.
China is a good place to keep the assets outside of China untouched during the divorce as Chinese court exercises no jurisdiction over the assets outside of China but without a valid prenuptial agreement, every penny you earn after marriage in China will be divided in half.
02
Cost of the litigation
In China, the cost of litigation depends on how many assets the couple has had in China qualified for division. If only divorce and child custody is involved, the court fee is small and usually the attorney fee will be less than the divorce with assets.
03
The enforcement of the judgment
To have a winning judgment that can not be enforced is meaningless and do check with a local lawyer about the enforcement of the judgment before a venue of divorce is chosen.
For a marriage between two foreigners who got married outside of China, conditions have to be satisfied before the court is willing to take the case in, either foreigner has living in China at the same place for more than one year (residential place), a divorce agreement is reached between the couple or the couple agrees to accept the jurisdiction of the court in the place where either party’s residential place is. If no agreement is reached, as long as one party has habitual residence, the Chinese court in the place where the habitual residence is has jurisdiction.
As per article 15 under Judicial Explanation One About the Application of The Law of the Application of Law for Foreign-related Civil Relations, when an individual has a place where such an individual has been living for more than year and such a place is considered as the living center of the individual when the occurrence, change and termination of civil relation takes place, the court may identify the place as the habitual residence of the individual provided under the Application of The Law of the Application of Law for Foreign-related Civil Relations, except that such a place is for medical treatment, labor dispatch, official business and etc. The problem is the proof of habitual residence.
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