The Jurisdiction of a Chinese Court over Foreign Related Divorce

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The Jurisdiction of a Chinese Court over Foreign Related Divorces

author/ LiDan

 Family Law Team of Guantao Lawfirm,

 Shanghai,China 

Two popular misunderstandings exist about a Chinese court’s jurisdiction over foreign related divorces: as long as the couple are both foreigners, the Chinese court has no jurisdiction over their divorces and as long as both of the couples used to be Chinese, the Chinese court has jurisdiction over their divorces. But that is not exactly the case.

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The jurisdiction of a Chinese court over a foreign related divorce case follows one principle: as long as there is a Chinese involved, the Chinese court has the jurisdiction over the divorce. 

For the jurisdiction over two foreigners’ divorce, in Shanghai judicial practice (as judicial practice varies and this article is only based on Shanghai judicial practice) ,as long as a foreigner as a defendant has a habitual place in Shanghai or the couple agree to have their divorce submitted to a Chinese court , the court will exercise the jurisdiction over the couple’s divorce.

A habitual place, as provided by the latest Judicial Interpretation about the Application Of Civil Procedure Law, is a place where a citizen has been living for more than one year after he or she left his or her domicile by the time when the lawsuit is initiated. Of course, a foreigner has no domicile under Chinese law as a domicile is a place where a Chinese citizen’s Hu Kou is registered. But if a foreigner does have a place in Shanghai where he or she has been living for more than one year by the time the other party files a divorce lawsuit in Shanghai, the Shanghai court will exercise jurisdiction over the divorce even if the other party has no habitual place in Shanghai or is even outside of China based on the principle of the actor sequitur forum rei.

Of course, evidence about habitual place needs to be submitted  when a divorce is filed and a statement from the local neighborhood committee proving you and your partner or your partner has been living in the place for more than one year or a statement from the property management company proving the same will do. Or a foreigner’s registered living place at local police bureau will work also. Take care the habitual place does not necessarily mean the same apartment or villa, as long as the places you two or your partner live in are in the same district and the living time in these places adding up is more than one year, the local district court will have jurisdiction over the foreign couple’s divorce case in Shanghai.

The jurisdiction is becoming a thorny issue for lots of foreign couples who keep on changing living places in China from one district to another district as the the job needs. And as they are living in China for quite long time, their own country’s court may lose jurisdiction over their divorces for there is no substantial connecting ground. Meanwhile, the party who is unwilling to get divorced may avoid Chinese court’s jurisdiction by keeping on changing living places from one district to another.

When a couple who used to be Chinese change their nationalities, they always consider themselves as Chinese still. But the change of nationalities totally changes the jurisdiction of the Chinese court and if the two do not live in China by the time the divorce is initiated, the Chinese court will have no jurisdiction over the divorce case. That means they may have nowhere to get divorced if they do not live long enough in the country they are becoming a new citizen.

My advice for the dilemma of not being able to get divorced because of the non existence of a habitual place of the other partner is that first of all, before you or the other party moving out, always check on the whereabouts of the other party; make a quick decision of divorce and action before the other party tries to use the living place changing strategy; always visiting the child during the separation to make sure the habitual place does not change; always trying to have a settlement agreement with your partner.

For the new foreigners who just lose their Chinese identity, always to figure out what possible risks or legal trouble you will have before you become foreigners.