Insights

Ningbo has a foreign court ruling whether to apply for recognition or sue for divorce.

Ningbo Author：LuXu WANG

Mr. Zhao has obtained a divorce judgment in a Canadian court, and his ex-wife is still in the country. He faces a procedural fork in the road: should he apply to the domestic courts for recognition of the foreign judgment, or should he simply re-sue for divorce at home? Direct conclusion: divorce judgments of foreign courts do not take effect automatically in our country, and must be recognized by our courts before the dissolution of the marriage relationship takes effect in China; The application for recognition only solves the problem of "whether the marriage relationship is dissolved or not". Chinese courts usually do not recognize the contents of property division and child support in foreign judgments. Issues involving domestic property and children must be dealt with separately in China; if the foreign judgment does not meet the conditions for recognition, or the property and children issues need to be resolved together, the divorce will be filed directly in the domestic court-the two paths have their own applicable scenarios, and the wrong choice will be in vain for several months.

1. why foreign divorce judgments need to be "recognized"

The judgment of foreign court is the product of foreign judicial sovereignty, which can not take effect within the territory of China. Article 288 of the Civil Procedure Law (Revised in 2023) stipulates that if a legally effective judgment or ruling made by a foreign court needs to be recognized and enforced by the people's court, the party concerned may directly apply to the People's Republic of China intermediate people's court with jurisdiction for recognition and enforcement, or the foreign court may apply to the people's court for recognition and enforcement in accordance with the provisions of the international treaties concluded or acceded to by the country and the the People's Republic of China, or in accordance with the principle of reciprocity. The consequences of

non-recognition are very realistic: in the view of the domestic marriage registration authority, the marriage relationship is still not dissolved, and the parties cannot register for remarriage; if one party remarries in the country, it may constitute bigamy. Therefore, if you hold a foreign divorce judgment and need to handle remarriage, household registration, real estate and other matters in China, applying for recognition is an unavoidable step.

Conditions and Jurisdiction of 2. Application for Recognition

Apply for recognition of foreign divorce judgment, the main points are as follows:

  1. jurisdiction court: apply to the intermediate people's court with jurisdiction (article 298 of the civil procedure law). in practice, it is usually the intermediate people's court where the applicant's domicile or habitual residence is located;
  2. The judgment must have taken legal effect: Please provide proof of the judgment’s finality; judgments that have not yet taken effect or are still within the appeal period will not be recognized.
  3. Reciprocity requires exemption from divorce judgment: Article 544 of the Interpretation of the Civil Procedure Law makes it clear that if the country applies for recognition and enforcement of foreign judgments, if the country and our country have not concluded or jointly participated in international treaties and have no reciprocal relationship, the application shall be ruled to be rejected-except for the application for recognition of divorce judgments made by foreign courts. That is, the recognition of divorce judgments does not require the existence of a treaty or reciprocal relationship between the two countries, and the review threshold is lower than that of general civil and commercial judgments;
  4. review standard: the recognition procedure is only for the form and public order review -- whether the judgment is truly effective, whether the procedure guarantees the litigant's right of action (service, appearance in court), whether the recognition violates the basic principles of our country's law and national sovereignty, security, social and public interests;
  5. Application Materials (Article 543 of the Interpretation of the Civil Procedure Law): Application, the original or certified copy of the foreign court judgment and the Chinese translation; Foreign documents are generally subject to notarization and certification by the country-the Convention on Canceling the Requirements for Certification of Foreign Official Documents (Hague Certification Convention) has come into force in China since November 7, 2023, the official documents issued by the member states of the Convention may be subject to "additional certificates (Apostille)" instead of consular certification, and the material process is greatly simplified, subject to the requirements of the court.

How to choose between 3. admission and prosecution

The boundaries of the two paths are clear:

  1. Only solve the problem of marital status (such as remarriage and restoration of single status): it is enough to apply for recognition, and the procedure is faster than the new prosecution, and there is no need to go through a complete divorce lawsuit in China;
  2. Need to deal with domestic property, child support: The provisions in foreign judgments concerning property division and child support are not recognized by Chinese courts and must be pursued separately through domestic litigation (in cases where a foreign divorce judgment is recognized, the court only renders a ruling on the marital relationship itself);
  3. The foreign judgment does not meet the conditions of recognition (the judgment is not effective, the procedure is seriously flawed, and it is rejected): it does not affect the divorce to be filed separately in the country -- the status relationship litigation will not be blocked because of the foreign judgment, and the court will retry the marriage relationship, property and children;
  4. Application for recognition and prosecution cannot be conducted simultaneously: Apply for recognition first, and then sue after being rejected; or directly give up recognition and choose to sue. Practice Tip: If a foreign judgment has dealt with the property and the property is abroad, the execution of the judgment in the place where the property is located can be assessed before deciding on the domestic path.

4. List of Materials and Timeline

  1. Obtain the foreign court’s divorce judgment and certificate of finality;
  2. Translate: Chinese translation is issued by a qualified translation agency;
  3. for notarial certification or additional certification: depending on whether the country of issuance of the instrument is a member of the Hague Certification Convention;
  4. submit the application for recognition and evidence to the intermediate people's court with jurisdiction;
  5. review by the court (generally, cases of recognizing foreign judgments are not held in court, and written review is the main part), and make a ruling of recognition or non-recognition;
  6. After the ruling is recognized, the domestic household registration, remarriage registration and other matters shall be handled with the ruling.

Special channel for 5. divorce judgments involving Hong Kong, Macao and Taiwan

The divorce judgments in Hong Kong, Macao and Taiwan do not follow the procedure of "recognition of foreign judgments", but apply their own special recognition rules, and the path is smoother than that of general foreign judgments:

  1. Hong Kong: According to the Arrangement on Mutual Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region, starting from February 15, 2022, the Mainland and Hong Kong shall mutually recognize and enforce civil judgments in matrimonial and family cases made by the courts of the other party, including divorce, child support, property division, etc. The applicant can apply to the Intermediate People's Court with jurisdiction in the Mainland, coverage is much greater than the "status-only component" of a general foreign judgment ";
  2. Taiwan region: According to the relevant provisions of the Supreme People's Court on the recognition and enforcement of the civil judgments of the courts in Taiwan, the divorce judgments made by the courts in Taiwan can be applied to the mainland courts for recognition, and the procedures will be handled with reference to the provisions of the Civil Procedure Law, and the recognition will take legal effect;
  3. Macao: the judgment of Macao court shall be handled according to the recognition arrangement of civil and commercial judgments between mainland and Macao, and the recognition scope and material requirements in the field of marriage and family affairs shall be verified with the accepting court on a case-by-case basis.

For the parties concerned, confirming whether the place where the judgment was made is within the scope of the above-mentioned special arrangement can avoid taking the detour of "recognition of foreign judgments" by mistake: for the same divorce judgment, the applicable procedures and the scope of matters that can be handled are different between the Canadian court and the Hong Kong court.

6. from recognition of the ruling to the landing of domestic matters

Obtaining the recognition ruling is only the first step, and the handling rules of subsequent matters should also be planned in advance:

  1. remarriage registration: with the effective ruling of recognizing the foreign divorce judgment, you can go to the marriage registration office for remarriage registration -- the marriage registration office is subject to the marriage status confirmed by the domestic effective legal documents, only the foreign judgment but no recognition ruling can not be handled;
  2. the change of marital status of household registration: if the marriage status is changed at the police station of the place of household registration with the certificate of recognition, and the information of overseas marriage registration is involved, the corresponding certificate shall be submitted together;
  3. Treatment of domestic real estate: even if foreign judgments are recognized, the content of the division of domestic real estate will not be recognized and enforced by our courts -- the transfer of domestic real estate must be based on the effective judgments, mediation documents or notarized property analysis agreements of the domestic courts, and the transfer of real estate cannot be directly registered only by foreign judgments and recognition rulings;
  4. child support and alimony: the support arrangement in foreign judgment cannot be directly enforced in China. If the child lives in China, it is usually necessary to take another lawsuit in China to confirm the support relationship and alimony, and then apply for enforcement;
  5. Property disputes after divorce: after the identity relationship is recognized, the unhandled domestic property can be separately filed for property division after divorce. At this time, it is admitted that the ruling has solved the prerequisite problem of "whether to divorce", and the property litigation is handled as ordinary disputes after divorce.

The suggested landing order is: first apply for recognition (settle the identity) → then handle the domestic household registration and remarriage matters → separate litigation for the domestic property and children. Mistaking "recognition" as "full case handling" is the most common cognitive bias in such cases-the recognition procedure gives an "identity pass", and property and children still have to be resolved within the domestic legal framework.

The causes and countermeasures of high incidence of non-recognition of 7.

It is not uncommon to admit that the application is rejected, and the reasons and countermeasures for the high incidence are as follows:

  1. the judgment is not effective or the effective certificate is missing: the effective certificate of the judgment (such as the certificate of the court of canada) must be attached when submitting. if only the judgment has no effective certificate, make it up first and then apply -- the most common procedural rejection reason;
  2. The procedural flaw of default judgment: If the defendant is judged by default without legal service, the court may not recognize that the procedure does not guarantee the litigant's right of action -- the absent party may raise the defense in the recognition procedure;
  3. Recognition of violation of public order: foreign judgments involving the determination of bigamy, discriminatory provisions and other violations of the basic principles of our laws or public order and good customs will not be recognized;
  4. Abuse of jurisdiction: if foreign courts exercise jurisdiction over cases with no reasonable connection point and obviously expand improperly, our courts may refuse to recognize it;
  5. materials and translation problems: if the translation version is incomplete and the authentication procedure is missing, the court will request to make corrections, and those that are not made up within the time limit will be treated as withdrawal or rejection-the materials will be prepared according to the four-piece set of "judgment + effective certificate + translation + authentication/additional certificate", which can greatly reduce the risk.

The course of action following dismissal is clear: it does not preclude filing a separate divorce suit in China (see the aforementioned discussion on “Choosing Between Recognition and Litigation”). In practice, many parties apply for rebuttal on their own and then go back to sue, which takes months in vain-the correct order is to assess the above five risk points before deciding on the path. Direct prosecution with obvious risks, application for recognition without risks, can be saved.

8. FAQ

Can the divorce judgments of Canadian and American courts be recognized in China?

may apply. Although there is no bilateral treaty between China, Canada and China to recognize divorce judgments, divorce judgments recognize the requirement of exemption and reciprocity (Article 544 of the Interpretation of the Civil Procedure Law). As long as the judgment is true and effective, the procedure is proper, and it does not violate public order, it can generally be recognized. The procedural materials required by the courts of various states in the United States are slightly different and need to be checked case by case.

After the application for recognition is rejected, can divorce be sued in China?

Can. The rejection of recognition means that the foreign judgment is not valid in the country, that the marriage is still alive in the country, and that either party may sue for divorce in a court of competent jurisdiction, resolving the issue of property and children together.

The foreign judgment has already dealt with the property, but should it be dealt with domestically?

Look at the location of the property. The disposition of foreign property by a foreign judgment may be enforced in accordance with the law of the place where the property is located; the disposition of property in China is not recognized by China, and the domestic property must be divided in a separate domestic court.

How long does it usually take and how much does it cost to apply for recognition?

Cases of recognizing foreign divorce judgments are tried by the intermediate people's court, which is generally reviewed in writing, and the period is usually several months; the fees are mainly application fees (charged by piece, the amount is not high), translation fees and notarization and certification fees. If the materials are complete and uncontroversial, the process is relatively smooth; if the other party raises objections or the procedural flaws are obvious, the cycle will be lengthened. It is recommended to make a preliminary assessment of the possibility of recognition before starting to avoid ineffective expenditure.

If the other party has married separately in China, is it meaningful to apply for recognition again?

is still meaningful and even more necessary-if the foreign judgment has not been recognized by our country, the other party may be suspected of bigamy when registered in the country; at this time, you should first apply for recognition of the foreign divorce judgment (or sue for divorce to confirm that the marriage has been dissolved), clarify the legal status of the two successive marriages, and then deal with the problems of property and children. Where there is a risk of “overlapping registration” in identity-related matters, it is best to resolve the issue as soon as possible to avoid the emergence of more complex legal disputes.

9. Practical Insights from a Lawyer

First, make clear your own goal: do you only need a conclusion that "the marriage has been divorced", or do you need to solve the domestic house and children by the way? If the marriage is only dissolved, it is usually faster to apply for recognition. However, the recognition procedure generally only confirms the identity, and the division of property and the maintenance of children are often not dealt with. Therefore, in order to resolve domestic matters together, it is necessary to prepare for separate prosecution after recognition, or to sue for divorce directly in the country when conditions permit. The cost of choosing the wrong path is often having to wait for several months in vain, so think your goals through carefully before you take action.

If you proceed with the recognition procedure, the supporting documents are the key to success or failure. It is necessary to confirm whether there is a judicial assistance arrangement between the country that made the judgment and our country, whether the judgment has finally entered into force, whether the service and jurisdiction are legitimate, and whether the content touches the public order of our country, and then prepare the original judgment, the certificate of entry into force, the identity materials and the standardized Chinese translation, and handle notarization and certification according to the requirements of the other country. In terms of jurisdiction, applications are generally filed with the court that has jurisdiction over the applicant’s domicile or habitual residence. In practice, the most common reason for documents being returned is non-compliance with translation or certification requirements; a thorough, item-by-item review can save considerable time and effort on rework.

If the conditions for recognition are not met, or if you intend to handle only the domestic property, you may directly file for divorce in China or separately initiate a post-divorce property dispute. At this stage, it is necessary to clearly reconcile the portions that have already been addressed overseas with the domestic claims, so as to avoid double counting or inconsistencies between them.Domestic real estate should distinguish between pre-marital and post-marital sources, capital contributions and registration status, and then determine whether to claim share or discount compensation. There are other special channels involving Hong Kong, Macao and Taiwan. First, confirm the local acceptance caliber and material requirements before starting. Cross-border cases have a long period of time. Priority is set first and then proceed item by item.

The choice of "recognition" or "prosecution" is essentially based on your real needs: only seeking a "single identity", applying for recognition is a shortcut; the right solution is to sue for divorce if the property is in the country, if there is a need to arrange for children, or if there is a flaw in a foreign judgment. Three suggestions to the parties: first, copy the foreign judgment for professionals to evaluate the possibility of recognition, then decide the path to avoid paying application fees and other procedures; Second, no matter which way you take, you should first fix the property evidence-domestic real estate, deposits and equity will not be automatically divided due to foreign judgments. Third, time planning should reserve translation and authentication links. Notarization and authentication of foreign-related documents usually take several weeks, the Hague Certification Convention has been significantly accelerated since its entry into force, but there is still plenty of room.

The last reminder falls on the word "purpose": applying for recognition and domestic prosecution are only means. If you think clearly about the final status you want-single status, property division, children arrangement or all three-then choose the path, and include the domestic household registration, real estate, remarriage and other follow-up actions into the timetable, then you can answer the procedural question of foreign divorce quickly and steadily.

must be pointed out: since the application for recognition is submitted and the ruling is made, the marriage relationship has not been dissolved in the country, and neither party is allowed to register and remarry in the country during this period, otherwise it may constitute bigamy; if the ruling is rejected, it should be sued for divorce in the country as soon as possible to avoid the long-term suspension of status affecting the household registration, real estate and children arrangement. The overall arrangement of the timeline of "application-ruling-follow-up matters" is the last piece of the puzzle in the management of foreign-related divorce proceedings.

condense the main points of the procedure into one sentence: first ask "how sure is the recognition of foreign judgments in China", then ask "my claim is identity or property", and finally push forward according to the three steps of "recognition/prosecution-domestic landing-overseas connection"-choose the right path, foreign divorce will no longer be a lingering lawsuit.

supplementary tips: the application for recognition and domestic prosecution have their own advantages and disadvantages, which can be linked up one after another, but "two legs at the same time" should not be avoided-the same marriage prosecution before the end of the recognition procedure may cause the procedure to be idle; it is more cost-effective to end one road first and then take the other.