Why do most of the Disney fairy tale movies end by getting married instead of starting with it? Because real marriage is full of ups and downs and worse, often it no longer lasts forever. According to the semi-annual report on divorce in China for 2019, the divorce rate has exceeded more than 50% nationwide. Marriage involving a foreign spouse can be even harder to maintain when there exists for example conflicts of culture, an unstable working environment or children’s educational issues to agree on. So, if unfortunately, you finally intend to take the first step, or your spouse has disappeared and you suddenly received a summons from the court, the following information is the very basic legal matters about divorcing in China that a foreigner would be well advised to know.
Governing law: If a Chinese citizen files a divorce case against a foreigner in China, Chinese law applies. Pursuant to applicable Chinese marital law, the divorce between a Chinese citizen and a foreign citizen shall be subject to the law of the country where the proceeding court is located. In a case which has been accepted by a Chinese court, matters of divorce and property division shall all be subject to Chinese law, while in regarding to the validity of the marriage, the law of the place of marriage registration shall prevail.
Important principles about Chinese marital laws and regulations:
o Property owned before marriage by one of the marriage partners belongs solely to that individual. Any property purchased after the marriage, are jointly owned by both parties unless a prenuptial agreement has been legally agreed in advance.
o Separation between the couple for more than two years constitutes a solid ground for filing for divorce.
o Generally, if the divorcing couple can’t reach agreement and if the child is below 2 years old, the guardianship will be granted to the mother. For a child above 2 years old, then other factors including which parent would provide the superior living environment are taken into account. When a child is above 8 years old, then the child’s opinion will also be a consideration. For the parent not living with the child, then they must allocate a fixed percentage of their monthly salary in the range of 20% to 30% as child maintenance payments to the parent granted custody. Some regional courts have issued internal guidelines that cap the maximum payment accordingto local economic conditions.
The above-mentioned principles are subject to some exceptions. For detailed provisions, please refer to Marriage Law of the People’s Republic of China.
Two ways to divorce:
1.By entering into a divorce agreement
If you manage to reach an agreement in relating to the property division and the guardianship of child with your spouse, you may go for registering the divorce in the same way that you got married. On the agreement, apart from the previously mentioned property division, child guardianship and allocation of educational expenses, other items such as the cause of the divorce, proprietary of the house, debt repayment shall also be arranged and set out in the agreement.
2.By litigation
In China, usually the judge will not grant a divorce if the filing party fails to prove the marital relationship is really broken and there is no chance to reconcile in the future. In such cases, without proper causes, the party may only be able to bring the case again to the court after another six months. So, most of the time, filing for divorce will become a tedious procedure unless one party is ready to pay a relative high compensation in exchange for changing their marital status.
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