Insights

Which court has jurisdiction over Ningbo foreign-related divorce cases

Ningbo Author：LuXu WANG

Chinese citizen Ms. Liu and her foreign husband live together in Ningbo for a long time. Both parties want to divorce. Ms. Liu is most concerned about: Which court should she sue? Can it be done in a Chinese court? Direct conclusion: Yes, the Chinese court has jurisdiction over divorce cases where one party is a Chinese citizen or both parties have their habitual residence in China; the court of jurisdiction shall determine according to the general principle of "the plaintiff is the defendant"-if the defendant lives in China, it shall be under the jurisdiction of the court of the defendant's domicile or habitual residence; if the defendant does not live in China, it shall be under the jurisdiction of the court of the plaintiff's domicile or habitual residence. Ms. Liu’s foreign‑national husband resides permanently in Ningbo, and the grassroots people’s court in Ningbo has jurisdiction; if her husband has already left the country, Ms. Liu may file a lawsuit with the court at his place of residence (Ningbo). Procedural foreign-related divorce also superimposes special rules such as service, defense period and application of law, which need to be planned in advance.

1. whether Chinese courts have jurisdiction over foreign-related divorces

Divorce proceedings are cases involving personal status; the basis for a Chinese court’s jurisdiction lies in the parties’ Chinese nationality or their habitual residence within China.

  1. If one party is a Chinese citizen, the Chinese courts have jurisdiction over the divorce proceedings (regardless of the nationality of the other party);
  2. Where both parties are foreigners, if they both have a habitual residence within the territory of China, Chinese courts will generally also accept the case—typically based on the criterion that they have resided in China continuously for more than one year and that China is their principal place of life.
  3. The place of marriage registration and the location of the main assets in China also constitute jurisdictional connecting points under certain circumstances (such as judicial practice before and after the issuance of Interpretation (II), as well as cases where only domestic property division is involved after divorce).

After the jurisdiction is determined, there is also the problem of law application: Article 27 of the Law on the Application of Law on Foreign-related Civil Relations in the People's Republic of China stipulates that the law of the place of court shall apply to litigation divorce-that is, in Chinese courts, the procedures and entities (determination of emotional breakdown, division of property, child support) shall apply to Chinese law in principle; article 26 allows the parties to a divorce by agreement to choose to apply the law of the habitual residence or the State of nationality of one of the parties. This means that the concern about whether foreign law would apply to a divorce involving foreigners in China generally does not hold true in the context of litigation-based divorce proceedings.

2. the specific rules of the competent court

In divorce cases, the jurisdiction of domestic courts is determined in accordance with Article 22 of the Civil Procedure Law: civil lawsuits brought against citizens shall be under the jurisdiction of the people’s court in the defendant’s domicile; if the defendant’s domicile and habitual residence are not in the same place, the people’s court in the habitual residence shall have jurisdiction. Foreign-related circumstances are further refined as follows:

  1. The defendant resides within the territory of China: jurisdiction lies with the people’s court at the defendant’s domicile or habitual residence—Ms. Liu’s foreign‑national husband has been residing in Ningbo for a prolonged period, and therefore the basic-level people’s court in Ningbo has jurisdiction.
  2. The defendant does not reside within the territory of the People's Republic of China: Article 23 of the Civil Procedure Law stipulates that lawsuits concerning personal relationships filed against persons who do not reside within the territory of the People's Republic of China shall be under the jurisdiction of the people's court in the plaintiff's domicile—since the husband has left the country, Ms. Liu may file a lawsuit with the court in her place of residence;
  3. Both parties are outside China and one party is suing: According to the relevant rules of the Interpretation of the Civil Procedure Law, overseas Chinese who settle abroad can file a lawsuit in the court of the place where the marriage was concluded or the last place of residence of one party in China; if one party of Chinese citizens lives abroad and the other party lives in China, the court of the domicile of the domestic party has jurisdiction-that is, as long as one party is still in China, the domestic court can basically accept the case;
  4. Both parties have settled abroad and only sued for the division of domestic property.: Jurisdiction shall be vested in the people’s court at the location of the principal property (Article 17 of the Interpretations of the Civil Procedure Law).

Three Ways of 3. Ningbo Scene

  1. The foreign husband is still residing in Ningbo: Ms. Liu has filed a lawsuit with the primary-level people’s court in Ningbo, where her husband habitually resides, and has provided proof of residence (residence permit, rental agreement, and employment certificate).
  2. The foreign husband has left the country, his whereabouts are unknown or refused to return home: Ms. Liu may file a lawsuit with the court in her place of domicile or habitual residence. The court may effect service of process abroad through diplomatic channels, consular assistance, or other means; if the defendant fails to respond or appear in court, a default judgment may be rendered.
  3. Both parties have reached an agreement on the divorce but the person is in a different place.: You can try to divorce by agreement -- there are certain conditions for the divorce registration of foreign-related marriages in China (the divorce registration rules for foreigners are different from those of mainland residents, and the material requirements are higher). If the divorce cannot be handled, the domestic court will settle the case quickly through mediation for the cases where both parties agree to divorce and the property children have no dispute.

4. Three special points regarding procedure

  1. Service of Process: For parties who have no domicile in China, the court shall effect service in accordance with the provisions on foreign-related cases in the Civil Procedure Law, by means of mail, diplomatic channels, treaty-based procedures, or public notice (the period for service by public notice is relatively long). The entire process is slower than that for domestic cases; therefore, sufficient time must be allowed.
  2. Period for Filing a Defense and for Appeal: For defendants without a domicile within the territory of China, both the period for filing a defense and the period for appeal are thirty days—longer than the fifteen-day periods applicable to domestic cases—resulting in a procedural pace that differs from that of domestic cases.
  3. Trial Time Limit: Foreign-related civil cases are not subject to the six-month trial time limit applicable under domestic ordinary procedures; the duration of proceedings may be longer. Where service of process abroad or notarization and authentication of foreign evidence are involved, patience is required.

5. Common misconceptions and correct answers

  1. Misunderstanding 1: Foreign-related divorce must go to the intermediate people's court.Correct answer: Ordinary foreign-related divorce cases are under the jurisdiction of the basic-level people’s courts; intermediate people’s courts only handle major foreign-related cases (such as those involving a very large amount in dispute or particularly complex facts). The vast majority of foreign-related divorces are resolved at the district or county level.
  2. Myth No. 2: If one party is a foreign national, Chinese courts have no jurisdiction.Correct answer: In divorce cases involving a Chinese citizen and a foreigner, Chinese courts have jurisdiction. When both parties are foreigners and have a habitual residence in China, Chinese courts generally also accept the case and apply Chinese law in adjudicating it.
  3. Misconception 3: If a case has already been filed or adjudicated abroad, it cannot be brought again in China. Positive solution: There is space for parallel litigation in divorce cases-if a foreign court has accepted or made a judgment but has not been recognized by our country, the domestic court can still accept it; however, in order to save costs, it is necessary to evaluate whether the foreign judgment can be recognized at home (see the article "Recognition of Foreign Divorce Judgments") to avoid two-front battles.

6. Process details and cost estimation for international divorces

Beyond the legal procedures, let’s thoroughly examine the real-world costs of international divorce to facilitate decision-making:

  1. documents and translation: foreign documents such as the foreign party's passport and foreign marriage certificate (such as registration abroad) generally need to be notarized and certified and provide Chinese translation documents; if the marriage is registered in China, the original marriage certificate can be provided directly;
  2. the cycle of overseas service: for the defendant who lives abroad, the court delivers the service through mail, diplomatic channels or treaties, and the service cycle of the announcement that cannot be delivered is as long as several months-if the overseas party does not cooperate, the whole lawsuit may be delayed for more than one year, so it is necessary to be psychologically prepared and start as soon as possible;
  3. Online court hearing: For overseas parties, they can apply to participate in the court hearing online. Ningbo court supports online litigation (online litigation has the same legal effect as offline litigation), which can significantly reduce the cost of cross-border litigation. However, identity verification and original evidence verification still need to be handled according to the requirements of the court;
  4. Proof requirements of judgment in absentia: if the defendant does not appear in court, the court should examine the fact of emotional breakdown claimed by the plaintiff, and the plaintiff should submit the separation certificate, communication record and evidence of emotional deterioration. Only "the other party does not come back" is not enough to automatically judge the divorce;
  5. Cross-border challenges in property enforcement: Enforcement of Chinese court judgments with respect to overseas assets must be carried out in accordance with the laws of the jurisdiction where the assets are located or through judicial assistance channels, which often yields limited results. For cases involving overseas real estate or bank accounts, it is advisable to pursue domestic and foreign proceedings concurrently, or to prioritize resolving related property disputes in the jurisdiction where the assets are located.
  6. Mediation priority: In foreign-related divorce, if both parties are willing to divorce and only have concerns about procedural convergence, the problems of identity, children and domestic property can be solved at the same time through mediation. The mediation statement and the judgment have the same enforcement power, and the uncertainty of the appeal procedure is omitted.

In terms of fees, the acceptance fee of divorce cases is calculated by piece or by the amount of property subject (the part involving property division exceeding a certain limit is charged in proportion). There is no extra "foreign-related fee" for foreign-related cases, but the actual expenses of translation, notarization and certification and overseas service should be borne by themselves -- the litigation costs of small property disputes are quite different from those of high property division, before filing a case, you can find out the specific charging rules from the court filing window.

The division, convergence and legal application of the property inside and outside the territory of 7.

When handling property in foreign-related divorce cases, it is also important to maintain “two separate sets of accounts—domestic and overseas”:

  1. Domestic property: in Chinese court for divorce, the domestic real estate, deposit and stock rights shall be divided according to Chinese law, and the judgment can be directly executed in China; if real estate is involved, the lawsuit of divorce status shall not be handled by the court of the defendant's domicile due to the change of jurisdiction of the real estate;
  2. Overseas property: The execution of the judgment of the Chinese court to the overseas property needs the legal or judicial assistance channel of the place where the property is located, and the effectiveness is limited-the overseas real estate, account and stock right usually need to be settled separately or negotiated at the place where the property is located, and the feasibility of obtaining evidence of the overseas property should be evaluated before the prosecution (account flow, notarization and authentication of ownership certificate);
  3. the legal application of the property relationship between husband and wife: the law of the place of court (chinese law) shall be applied to the divorce proceedings; the confirmation of the property system between husband and wife is involved. according to article 24 of the law on the application of laws for foreign-related civil relations, the law of one party's habitual residence, the law of the country of nationality or the law of the place where the principal property is located may be applied by agreement, application of the law of the common habitual residence, etc.-if the parties have an agreement on property, it is necessary to first determine whether the law applicable to the agreement is valid under the conflict of laws;
  4. The attribution of the overseas income during the separation period: whether the income of one party working abroad belongs to the common property or not is still judged according to the Chinese law -- the income during the existence of the marriage relationship is the common property in principle, unless there is an agreement or legal exception, the overseas income cannot be exempted because "the person is abroad;
  5. Foreign-related choice of divorce by agreement: If both parties can negotiate to handle the divorce in their place of habitual residence or in the country of one party's nationality, first compare the handling rules and enforcement convenience of property and children in the divorce procedures of the two places, and then decide which way to leave-some countries have more thorough handling of property but difficult to enforce the divorce judgment, while others have the opposite, and the choice itself is also a strategy.

Operation suggestion: No matter where you divorce, first sort out the property lists of the two places and fix the evidence; if it involves overseas property, consult the legal person of the place where the property is located at the same time, and the two lines at home and abroad are parallel, so as to avoid "winning the judgment and losing the property".

8. Frequently Asked Questions

Both parties are Chinese citizens, but both work and live abroad. What about divorce?

If they are overseas Chinese, they can sue in the court of the place where the marriage was concluded or the last place of residence of one party in China; if they have not settled down and only work and stay temporarily abroad, they can sue in the court of the original place of residence of the plaintiff or the defendant (relevant rules of the Interpretation of the Civil Procedure Law). Regarding the materials, please ensure that your identity and marital status are duly notarized and authenticated.

Can the foreign spouse leave without returning home or appearing in court?

Can. After the court has completed the legal service, if the defendant refuses to appear in court without justifiable reasons, the judgment may be made by default. However, the court in the case of identity relationship will carefully review the fact of emotional breakdown. The plaintiff must provide evidence such as separation and emotional discord. The determination of divorce depends on the evidence rather than whether the defendant is present.

What should be done if the foreign husband raises an objection to jurisdiction after a lawsuit is filed in Ningbo?

Jurisdiction objection is a procedural right, and the defendant can claim that his habitual residence is not in the jurisdiction of the accepting court, etc.; as long as the accepting court is indeed the court of the defendant's domicile or habitual residence, or in accordance with the jurisdiction of the plaintiff's domicile, the objection is usually not established. It is recommended to submit proof of domicile and residence in a single submission when filing a lawsuit, so as to minimize procedural delays.

If a foreign spouse consents to the divorce, can the couple bypass litigation and register for divorce directly in China?

There are special regulations on divorce registration for foreign-related marriages. The requirements for materials are higher than those of mainland residents (the documents of the foreign party must be certified and translated, etc.). Both parties can try to handle the divorce if they are in China and agree through consultation. If the formalities are blocked or one party is abroad, the divorce is safer-if both parties agree to divorce, the court can mediate and close the case quickly, and the procedure is not much slower than registration.

If a foreign spouse has left China and cannot be contacted, can the divorce proceedings still move forward?

Can. If the court serves abroad by mail, diplomatic channels or treaty, the applicable notice that cannot be served (the notice period is longer) shall be deemed to have been served at the expiration of the notice period, and the defendant may be tried in absentia if he is not in court. The plaintiff needs to prepare evidence of marital relationship, emotional breakdown and property, and the execution of domestic property after the divorce is decided to be carried out in China. If the other party is required to cooperate in handling overseas affairs (such as changing overseas documents), it can only be settled through negotiation, and the judgment has limited binding force on overseas institutions.

9. Practical Insights from a Lawyer

The first thing to be solved in foreign-related divorce is often not "inseparable", but "where to leave, who is in charge". In practice, first judge whether it can be handled by a Chinese court: if one party is a Chinese citizen or both parties have a habitual residence in China, it can generally be accepted; Then, according to the plaintiff's thinking on the defendant, it is determined which court to go to-if the other party lives in China, it will go to the court of its domicile or habitual residence. If the other party has left the country, it can often go to the court of its domicile. Only when the jurisdiction is chosen correctly can the subsequent service and hearing proceed smoothly.

In foreign-related cases, what truly consumes time is the procedural aspect, not the substantive issues.The address, identity documents and authorization documents of the overseas party often need notarization and authentication. The service cycle is long and the defense period is different from that in China. A slight delay may drag on for several months. Therefore, it is necessary to be patient in preparing materials: passports, overseas residence certificates, translation and authentication documents of marriage certificates, written explanations of the property of both parties and the status of their children, which can be done in advance as far as possible. At the same time, there should be a cost expectation, and the time and cost should be included in the negotiation chips, instead of rushing to the court session.

As soon as the property is involved overseas, two sets of rules will be superimposed. Domestic real estate and deposits are relatively easy to handle, while overseas accounts and real estate have to consider whether they can be identified, whether they can be enforced, and which party's laws apply, which often become difficult in the proof of evidence and future enforcement. The experience is that those who can negotiate should try their best to specify the handling and performance of overseas property in the agreement, and clearly write down the currency, account and performance time to reduce the trouble of cross-border implementation in the future. During the negotiation, the actual difference between "you are in China and I am abroad" is taken as the bargaining point, and each takes what he needs, which is often easier to land than hard judgment.

The first principle of foreign-related divorce jurisdiction is "if it can be handled in China, it can be handled in China" -- as long as the defendant lives in China or the plaintiff has a residence in China, the domestic courts basically have jurisdiction, and the divorce proceedings are applicable to Chinese laws, with transparent rules and controllable costs. Operational suggestions to the parties: the first step is to fix the "connection point" evidence-the defendant's residence permit, residence permit, rental or purchase contract, the plaintiff's household registration and regular residence certificate; The second step is to determine the court of prosecution and check the requirements for foreign-related materials (passport translation, notarization and certification of foreign language documents); The third step is to have psychological expectations for overseas service and extension of the defense period, and to mediate as much as possible through consensus, the settlement of foreign-related cases through mediation can save a lot of cross-border procedures. The key to cross-border marriage is to get the "first pass of the procedure" of jurisdiction right.

add another sentence in the procedure: if the case of foreign-related divorce is settled by mediation, the mediation statement will take effect after being signed by both parties and has enforcement power; the part involving the performance of domestic property can be directly applied for execution in China. Whether judgment or mediation, the effective document is the legal certificate for household transfer, remarriage registration and property transfer, and must be properly kept and kept in multiple copies.

In one sentence: Where is the jurisdiction, what law is applied, and how long will it take? If you think clearly about the three questions, the framework of foreign-related divorce will be clear; the rest will be left to evidence and patience.