China Divorce and Separation: The Basics

Divorce is never easy, but going through one when you're far away from home is especially difficult. Getting accurate, honest legal advice is one of the biggest challenges when trying to get a divorce in China. Luckily you have found this page and are now well on the way to understanding what your options are and what to do next.

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For unmarried couples

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. 

For married couples
  • Divorce
vs. Separation
It may seem silly to ask, but in fact this distinction counts for a lot when it comes to ending a relationship. 

Couples who are legally married can opt to either separate temporarily and hopefully reconcile the relationship or go ahead and get a full and final divorce, which means permanently ending the marriage. A legally obtained divorce is the only way to permanently end a marriage and is required in order to remarry.

In many countries a period of "legal separation" (usually between one and five years) is required before a couple can apply for a divorce. China has no such requirement.

Although, like most countries, China does have a one year residency requirement which needs to be met by at least one spouse before being able to file for divorce in China.

  • Who can get divorced in China?

There are three main categories of married couples that
can get divorced in China:

Divorce between a foreign citizen and a Chinese citizen

A foreign national who married a Chinese citizen in China
can get a divorce in China even if they are both currently
living abroad.

Divorce between two foreign citizens now living in China

Expats, married either in China or in another country, can
get divorced in China provided they can meet certain conditions.

Divorce between two Chinese citizens

Two Chinese citizens married in Mainland China can get
divorced in China even if they are currently living abroad.

  • 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;

- Passport;

- Work Permit or Foreign Expert Certificate;

- Police Registration;

- Ownership Certificate(s) (if you own real estate).

Contentious and non-contentious divorce

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 agreement

A divorce by agreement is permitted where both parties to the marriage want, or at least agree, to get divorced. In an agreed divorce the parties are generally free to negotiate child support payments, visitation rights and division of property (i.e.: real estate, furniture, cash, stock, etc.) without any interference from a judge.

If the marriage was originally performed in China and an agreement can be reached, an "express" divorce procedure is usually possible. In this scenario a divorce certificate is issued by the local Chinese Marriage Registration Office (also refered to as the Civil Affairs Bureau) and not by the the court. Once the necessary legal formalities are completed the divorce is entered into the record and the marriage is officially dissolved. So long as the parties to the marriage can come to an agreement on how to settle their affairs, this process can usually be completed very quickly.

How does "Divorce by Agreement" work in Expat Divorce?

It is fairly common for expat couples living in China to get a divorce while still on friendly terms. Indeed, those fortunate enough to be able to work out all the details of the split in concrete enough terms to be put in writing do in fact end up saving themselves a great deal of time and effort. In this case the divorce is not considered "contentious", but because of special rules applying to foreign couples, the Chinese courts are still responsible for finalizing the divorce through what is called a "divorce settlement".

The procedure used is technically classified as litigation, but in reality all that happens is the court approves a prepared written agreement made jointly by the spouses and issues a judgment giving it legal effect. As part of the divorce process, an experienced Chinese divorce lawyer will always take care of drafting the agreement and attend the court hearing with the couple. 

The hardest part of a divorce by agreement is usually coming to an agreement on what ought to be in the agreement! Typically one Chinese divorce lawyer will work with the divorcing parties to help them settle any outstanding matters and then proceed to write a draft agreement before having both parties sign the final version. When selecting a lawyer to handle your case, be sure to inquire about his/her willingness to act as a mediator as well.

  • 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.