Civil Code Q&A: How can foreigners divorce in China?

Q: Can foreigners register a divorce with the Civil Affairs Bureau in Mainland China?
A: Yes, but they must meet the following criteria:
(1)at least one of the parties holds a Chinese ID card;
(2)the marriage was registered with the Civil Affairs Bureau in Mainland China;
(3)the marriage must be legally valid, which means the marriage must not have been revoked or invalidated under Chinese law;
(4)both parties agree to the divorce;
(5)the parties have reached a divorce agreement on issues of custody, joint properties & debts, etc.

Q: When can we get the divorce certificate when register a divorce with the Affairs Bureau?
A: Before January 1st 2021, the couple can immediately receive the divorce certificate if they meet the conditions for divorcing with the Civil Affairs Bureau.
After January 1st 2021, when the Civil Code is implemented, the process will be changed. The couple should go to the civil affairs bureau together to apply for a divorce; 30 days after the application, the couple must go together to civil affairs bureau and get the divorce certificate within another 30 days. Otherwise, the application will be invalidated. The diagram below clarifies the process:

Q: Can two foreigners married outside of Mainland China divorce in Mainland China?
A: Yes, but only through a lawsuit, and the following documents are required:
(1)a ‘legalized’ marriage certificate, which means that their marriage certificate must be notarized by an acceptable notary and certified by the Chinese consulate in the country where they received the marriage certificate;
(2)Documents proving that the defendant party has lived in a city in Mainland China for more than one year, so that the court there can take jurisdiction.

Q: When can a judge make a divorce judgement?
A: the judge can directly make a divorce judgement under the following circumstances:
(1)The party is proved to have engaged in bigamy or cohabitation;
(2)Domestic violence, maltreatment, or desertion of a family member;
(3)Gambling, drugs, and other vices that are incorrigible;
(4)Separated for two years due to emotional discord;
(5)Both parties agree to divorce;
(6)Filing of a lawsuit one year after a first judgement of not divorce.

Q: Can the Chinese judgement and divorce certificate be recognized in other countries? How?
A: Yes, by having the documents mentioned above notarized and certified in the consulate of that country in Mainland China.

Q:How is child custody determined?
A: Custody will be decided based on the following principles:
(1)If the child is under 2 years old: custody will belong to the mother;
(2)If the child is between the ages of 2 and 8: If the parents fail to reach an agreement on upbringing, the court shall make a judgment in the light of the specific circumstances of both parties and in accordance with the principle of the outcome most favorable to the child;
(3)If the child is over eight years old: the court will respect the child’s will.

We hope the answers offer some helpful insights into the basic divorce process here in China. If you have any questions on divorce, or other family issues, feel free to contact us.

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