China Lawyer: How to File a Divorce Lawsuit in China?
“I am a British citizen, my wife is a Chinese citizen, could I bring a divorce case in China?” “I am a Chinese citizen, my wife is a foreigner, we got married abroad, could we divorce in China?” “I want to get a divorce, but my husband and I have different nationalities, what should I do?” ......
Recently we have been asked a lot of such questions related to divorce cases. Under PRC law, foreign-related divorce cases are quite complicated. We try to simplify it and give you some instructions.
If you want to get a divorce in China, the first issue is about the jurisdiction. What kind of divorce cases could be brought in China?
Both spouses are Chinese citizens, however, for both spouses are Chinese citizens and both have settled abroad, if the spouse married in China and the foreign country reject the case on the ground that such a case must be under the jurisdiction of the court at the place of celebration; OR if the spouse married abroad and the foreign country reject the case on the ground that such a case must be try of nationality of the overseas Chinese, the PRC court shall have jurisdiction.
One party is Chinese citizen and the other is not.
For both spouses are not Chinese citizens, it is not very clear, but usually if at least one party have habitual residence in China and both parties agree the jurisdiction of PRC, the PRC court have jurisdiction.
The second question you may concern about is under what situation, the court may grant a divorce.
According to Article 32 of Marriage Law of the People's Republic of China (2001 Amendment), divorce shall be granted if any of the following circumstances occurs and mediation fails:
either party is a bigamist or a person who has a spouse but co-habits with another person;
there is family violence or maltreatment or desertion of any family member;
either party is indulged in gambling, drug-abuse or has other vicious habits and refuses to mend his or her ways despite of repeated admonition;
both parties have lived separately due to lack of mutual affection for up to two years;
other circumstances that have led to the nonexistence of mutual affection as husband and wife. If either party has been declared by court as to be missing and the other party applies to be divorced, divorce shall be granted.