Add on 06.02.2017
Is a Chinese divorce recognized in foreign countries?
Yes, a Chinese divorce is widely recognized throughout the world. A divorce obtained in China is usually valid and legally effective in other countries, including those in Europe, North American and Oceania. Each country has its own rules for recognizing or "transferring" a divorce judgement from one country to another. Certain countries require registration of foreign divorces, while many do not.
Some countries have specific laws that govern recognition of foreign divorces, while others choose to rely on basic principles of international law. One of the most important international legal principles is known as “comity”. In essence comity is a form of reciprocity or respect held between different legal systems where a valid legal act performed in one country is recognized and upheld by other countries. When talking about international divorce, comity makes it extremely likely that a divorce granted in one country is equally valid all over the world.
Section 104 of the Family Law Act 1975 provides several requirements for the recognition of a foreign divorce: (i) That the Respondent was ordinarily resident in China at the time the case was filed, (ii) the Applicant was resident in China (or was ordinarily resident there for at least one year before the case was filed or the last place of cohabitation of the parties was in China), (iii) the Applicant or the Respondent was domiciled in China when the case was filed, (iv) the Respondent is a Chinese citizen when the case was filed, (v) the Applicant is a Chinese citizen and was ordinarily resident in China when the case was filed or had been ordinarily resident in China for a continuous period of one year falling within the period of two years before the case was filed.
According to the Divorce Act 1985 Canada generally recognizes a divorce from China if the divorce was valid under Chinese law and one or both spouses lived in China for a full year immediately before applying for the divorce.
Part II of the Family Law Act 1986 provides criteria for the recognition of foreign divorces in the UK. This law specifies certain criteria that the foreign divorce must meet: that the divorce is effective under Chinese law and at the date of the commencement of the proceedings that either party to the marriage was: (a) habitually resident in China, (b) domiciled in China or (c) a Chinese citizen.
Under the United States Constitution, marriage and divorce are matters generally handled by the states rather than the US federal government. There is accordingly no national law or explicit set of rules which govern this topic. Additionally, there is no international treaty in force between the United States and any country that requires the recognition of foreign divorces.
However, a divorce decree issued in China is generally recognized in the United States on the basis of comity provided that certain basic procedural requirements are met when the Chinese divorce judgement is issued. These requirements include the obligation that both parties must have had notice of the divorce proceeding and that both spouses have been given an opportunity to be heard within these proceedings.
States may also consider the jurisdictional basis upon which the Chinese divorce is founded and may not recognize the divorce if it cannot be adequately shown that at least one party was domiciled in China at the time of the divorce. Where neither party is domiciled in the foreign country that issued the divorce, many state courts have found the divorce to be invalid.
A few words about Flora
Flora Huang is a leading Chinese lawyer specializing in corporate and commercial law, international family law and expat divorce. A pioneer in many aspects of transnational legal practice, Flora has served as a China legal commentator in both local and international media and acted as an expert witness in countless international legal proceedings.
Fluent in English and familiar with most major legal systems, Ms. Huang has built-up an enviable network of contacts around the world to ensure that business decisions, litigation, and transactions are informed by up-to-date advice from experienced practitioners wherever the client is or wants to be.
subscribe by email using form below