China Divorce and Separation: The Basics

Getting a divorce is never easy, but going through one when you're far away from home is especially difficult. For most people, finding honest, accurate legal advice is one of the biggest challenges to getting divorced in China.

Luckily you have found this page and are now well on the way to understanding what your options are and what you should 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 their relationship as married couples do. The main reason for this is that there is no Chinese legislation regulating 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 flair 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. It is often the case that 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 consider litigation. That said, in some cases the disagreement between the parties is simply intractable and going to court is inevitable. This is often the case 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.

You should also keep in mind that unmarried couples who buy property 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 idea to formalize how the property should be shared in a professionally written legal agreement. This simple step can save an enormous amount of trouble down the road should the worst happen. 

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Flora is regularly called on by legal professionals from around the world to consult or act as an expert witness. If you need assistance on a matter involving any aspect of Chinese family law, please feel free to get in touch for a complimentary legal review of the file.

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 citizens can be finalized in as little as one month -- provided both spouses can come to an agreement over any outstanding issues related to their separation. Being an internationally recognized expat divorce attorney, Flora is usually able to have the divorce confirmed immediately after the court hearing, eliminating weeks of waiting for the judgement to be issued. When it comes to expat divorce in China, experience is a key factor in assuring a positive outcome.

  • Divorce by agreement

A divorce by agreement is possible when 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 and spousal support payments, visitation rights and division of marital 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 often possible. In this scenario the Chinese courts are not used, but rather the divorce is registered with the local Chinese Marriage Registration Office (which is a department within the local Civil Affairs Bureau) and a divorce certificate issued (rather than a divorce judgement). 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 relatively quickly.

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

It is fairly common for expat couples living in China to file for divorce while still on friendly terms. Indeed, those couples who are fortunate enough to be able to work out all the fine points of the divorce and put them writing usually do end up saving a good deal of time and effort. In these cases 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 confirmation" (essentially a legal document issued by the court).

The procedure used is technically classified as litigation, but in practice 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 agreeing on what ought to be in the agreement. Typically one Chinese divorce lawyer will work with both divorcing parties to help them settle any outstanding matters and then go on to write a draft divorce agreement. After both spouses agree on the the final text, they proceed to 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 once again takes over 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 spouses have lived separately for over two (2) years because of incompatibility;
- where a spouse has committed bigamy or has cohabited with a third party;
- where a spouse is has committed acts of domestic violence or has otherwise maltreated his/her spouse;
- where a spouse has a long-term gambling or drug addiction;
- where a spouse 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 (includuding Europe and North America). 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.