Part 1. Conditions to get divorce
1.If both husband and wife desire a divorce, the application will be granted. Both parties shall apply to the marriage registration office for divorce. The marriage registration office, on the other hand, should make sure that there are appropriate arrangements (e.g. Divorce agreements) over the care of children and disposition of property over two parties.
2.If one party alone desires a divorce, the organization concerned such as marriage registration office may step in and carry out the mediation or directly apply to a People’s Count to start the divorce proceedings.
3.In following cases, if the mediation fails, the divorce shall be granted:
i.One party, that is the husband or the wife, has get married with another person or has lived with another person over a time of period.
ii.One party in the marriage abuses or abandon family members.
iii.One party in the marriage is addicted to gambling or drugs.
iv.Both parties have separated to live over two years.
v.One party in the marriage is missing.
4.A husband may not apply for a divorce when his wife is pregnant or within one year after the birth of the child. This restriction shall not apply in cases where the wife applies for a divorce.
Party 2.duty of children
After divorces, both parents shall still have the right and duty to bring up and educate their children.
In principle, the mother shall have the custody of a breast-fed infant after divorce. If a dispute arises between the two parents over the custody of their child who has been weaned and they fail to reach an agreement, the People’s Court shall make a judgment in accordance with the rights and interests of the child and actual financial conditions of the parents.
If, after divorce, one parent has been given custody of a child, the other parent shall bear part or the whole of the child's necessary living and educational expenses. The two parents shall seek agreement regarding the amount and duration of such payment. This part can be included in the divorce agreement. If they fail to reach an agreement, the People's Court shall make a judgment.
The agreement or court judgment on the payment of a child's living and educational expenses shall not prevent the child from making a reasonable request， when necessary， to either parent for an amount exceeding what was decided upon in the said agreement or judgment.
Part 3. Disposition of property
At the time of divorce, the husband and the wife shall seek agreement regarding the disposition of their jointly possessed property which includes the money at each party’s bank account, financial assets as well as its benefits, housing and benefits from IPR. For example, they could sign the divorce agreement. However, if they fail to reach an agreement, the people's court shall make a judgment, taking into consideration the actual circumstances of the property and the rights and interests of the wife and the child.
Housing
In terms of housing, if the husband and the wife jointly purchased the property after or before the marriage, the house is regarded as joint property. The People’s Court will grant if both parties agree to use the house mutually and remain the property right after the divorce. In the other case, if one party is agreed to possess the house, the agency of assets appraisal will assess the value of house. The party who owns the house is obliged to offer equivalent-value compensation to the other party. Finally, if the appropriate arrangement over the property could not be carried out, the house will go on auction to be sold to the third party. The money getting from this trade will be divided to both parties. In principle, the party who has been given the custody of child shall be prioritized in the course of division of property.
Part 4 International marriage under Chinese law
According to article 21 of Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China, foreign couples enrolled in Chinese marriage registration office and live in China can either directly apply for the divorce to local marriage registration office or People’s Court in China, or they can apply to related courts or organizations where their nationalities are. If they choose to go through the procedures in China, Chinese marriage law is applied to their divorce case.
When the couple is registered in China but live abroad, on the other hand, they could apply for the divorce to local related authorities where they lived. If the local authorities refused to make the judgment, the couple could turn to Chinese People’s Court instead. Chinese People’s Court is obliged to accept the case and make a judgment on the based of article 22 of Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China. If the couple are not available to be in China to go through the proceedings, they can appoint a legal agency (e.g. family law lawyers) to delegate themselves.
As long as one party in the marriage is a Chinese citizen, the divorce application can be handed to Chinese marriage registration office and proceeded by the People’s Court in China. Otherwise, the couple could apply to local related authorities where their partner’ nationality is.
Article 26 in Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China also states that, for a divorce by agreement, the parties concerned may choose the applicable laws at the habitual residence or of the state of nationality of one party by agreement. If the parties do not choose, the laws at the mutual habitual residence shall apply; if there is no mutual habitual residence, the laws of the mutual state of nationality shall apply; if there is no mutual nationality, the laws at the locality of the institution handling the divorce formalities shall apply.
Part 5. Procedure for Divorce Registration (for foreigners who are registered or lived in China)
1.The divorce agreement self-drafted and signed by both parties.
2.The certificate of identification
3.The marriage certificate issued either by Chinese authority or foreign authority.
4.2 recent passport-size photos
5.Residence household register (Hukou), if one party in marriage is a Chinese citizen.
6.Other valid international travel certificates of applicant (e.g. residence permit for foreigners)
(The following documents are only necessary for people who directly apply to the People’s Court)
7.One copy of complaint prepared by yourself or an attorney
8.One copy of the original Power of Attorney
9.Exhibits
All documents are required to be handed in Chinese. Any documents in foreign language need to be translated into Chinese by a agency or an organization officially admitted.
Please be aware that the divorce certificate issued by Chinese local marriage registration office might not admitted by foreign authorities. It is advisable that any case involved in foreign elements shall be judged by the People’s Count!!!