This section is written especially for unmarried couples who are thinking of breaking up -- if you're legally married, skip ahead to the section on divorce just below. Unfortunately, those in less formal relationships don't benefit from the same “legal” solutions to ending the relationship as married couples do. The biggest reason for this is that there is no Chinese legislation dictating who should get what when a common-law relationship comes to an end. As with any dispute, the first step is always to try and work out a peaceful split from your partner on your own. Often, though, tempers run hot and a solution seems a long way off, in which case it is probably wise to get help from a Chinese divorce lawyer or a qualified mediator. Many times bringing in an impartial third-party can bring the important issues into focus and help pave the way to a fair negotiated settlement for both parties.
Only after you have tried everything else should you ever even consider litigation. The fact is though that in some cases going to court is just inevitable -- the parties are just too far apart to ever reach a fair compromise. This is particularly true when real estate or other property is at issue, such as a house or car purchased during the relationship. In these situations, having a judge decide how to share the property (usually based on contribution to the purchase price) might be the best solution.
Chinese real estate can certainly be an excellent investment, but should you buy that house with your boyfriend or girlfriend? Unmarried couples who purchase real estate together don't benefit from the same property division rules as married couples do when they breakup. Regardless of the type of relationship you are in, it is always a good decision to formalize how the property will be shared in a written, notarized agreement. This simple step, which a Chinese lawyer can help you with, can save an enormous amount of trouble down the road should the worst happen.
- Foreign Nationals
Regardless of where you got married, expat couples can get a divorce in China. In most cases, a special court procedure is used. But, to file for divorce in China, you do have to meet certain basic conditions:
- at least one spouse has lived in China for over a year;
- the couple agrees to end the marriage;
- the couple agrees to divorce using the Chinese courts.
What documents do I need?
To get the process started, you should try to bring the following items with you when you first meet with your Chinese divorce lawyer:
- Marriage Certificate;
- Work Permit or Foreign Expert Certificate;
- Police Registration;
- Ownership Certificate(s) (if you own real estate).
In China, unlike many other jurisdictions, there are two very different ways to get divorced. Broadly speaking, couples may divorce by agreement or by litigation. That said, expats (i.e.: two foreign nationals who got married abroad) should keep in mind that the rules which apply to them are a little different and not all the options described here are available.
How long will my Chinese divorce take?
Every case is different, but in the hands of an experienced Chinese divorce and family law attorney a divorce between two foreign nationals can be finalized in as little as one month -- provided both spouses can come to an agreement over any outstanding issues relating to their separation. Being an internationally renowned divorce expert, Flora is usually able to have the divorce confirmed immediately after the court hearing, eliminating weeks of waiting for the judgement to be issued.
- Divorce by litigation
Where only one spouse wants to dissolve the marriage, the divorce must be conducted through the courts. Assuming there is no prior agreement, the court will decide how to settle all outstanding issues including child support, visitation rights, property division and support payments. One interesting feature of Chinese litigated divorces is the focus placed by the courts on trying to secure a negotiated settlement.
Generally speaking, the judge will, at multiple points throughout the litigation process, ask the spouses if a settlement seems like a reasonable possibility and, if so, if they would like to switch to court-approved mediation to try and resolve their differences. Of course, if the relationship is particularly acrimonious, or if mediation fails to deliver a compromise, the court will once again takeover the case and issue a final judgement.
A contentious divorce will be granted by the Chinese courts when at least one of following conditions can be satisfied:
- where circumstances causing the alienation of mutual affection exist (so-called "loss of affection");
- where the parties have lived separately for over two years because of incompatibility;
- where one party has committed bigamy or has cohabited with a third party;
- where one party is guilty of domestic violence or has maltreated the other party;
- where one party has a long-term gambling or drug addiction;
- where one party is declared missing.
Is a Chinese divorce valid internationally?
Generally speaking, yes. A divorce done in China is usually valid in other countries as well. Each country has its own rules for "transferring" a judgement from one country to another. Having a divorce judgement made legally valid in your home country is normally fairly straightforward, but the exact process varies from one country to the next.
Be sure to discuss this very important topic in detail with your Chinese divorce lawyer. He/she should be able to explain the transfer procedure and help you navigate through the process -- usually at no extra charge.