Insights

How to determine the jurisdiction of Ningbo foreign marriage divorce in China

Ningbo Author：LuXu WANG

One party works abroad, the two parties register their marriage abroad, and their property is scattered in two countries. Once such families are separated, the first question that gets stuck is often not how much to divide, but which court to go. If the jurisdiction is wrong, a few months of waiting may lead to a ruling of inadmissibility. However, if the court is chosen correctly, the service, proof and execution will be much smoother.

1. what circumstances are foreign-related marriage disputes?

The criterion for judging foreign affairs is more than nationality. If one or both parties are foreigners or stateless persons, the habitual residence of one or both parties is abroad, the subject matter is abroad, or the legal facts of the creation, change or extinction of the marriage relationship occur abroad, one of them is a foreign-related civil relationship, and the corresponding rules of jurisdiction and application of law shall apply.

Overseas Chinese and Hong Kong, Macao and Taiwan

if both parties are overseas Chinese and have settled abroad, they are usually under the jurisdiction of the court of the place where the marriage was concluded or the place of one party's original residence. Cases involving the Hong Kong Special Administrative Region, the Macao Special Administrative Region and Taiwan are not foreign-related cases, but they are handled with reference to foreign-related regulations, and the requirements for service and document certification are basically the same.

Rules of territorial jurisdiction 2. domestic prosecution

the general rule remains that the plaintiff, with respect to the defendant, is under the jurisdiction of the court of the defendant's domicile; if the defendant's domicile is inconsistent with his habitual residence, it is under the jurisdiction of the court of the habitual residence. There are a number of exceptions in foreign-related situations.

Cases admissible by the court where the plaintiff is located

if the defendant does not live in the the People's Republic of China area, his whereabouts are unknown or declared missing, or he is subject to compulsory educational measures or is imprisoned, the court of the plaintiff's domicile shall have jurisdiction; if the plaintiff's domicile is inconsistent with his habitual residence, the court of the plaintiff's habitual residence shall have jurisdiction. In addition, divorce proceedings brought by non-military personnel against military personnel shall be under the jurisdiction of the court of the plaintiff's domicile if the military party is not a civilian.

Special provisions when the 3. party is abroad for a long period of time

this is the most common category. The domestic side is often worried that it will not be able to leave if it cannot find anyone. In fact, there are already procedural arrangements. In Ningbo, such lawsuits are generally accepted by the grass-roots people's courts of various districts (counties and cities); according to the answers to several questions on the trial of marriage and family cases (Gao Fa Min -1 [2016] No. 2), the divorce proceedings in which the whereabouts of the defendant are unknown are not premised on the declaration of disappearance, and the loss of the foreign party does not affect the prosecution.

Two Paths to Settle Abroad

if one of the Chinese citizens settles abroad and the other party sues in the country, the court of the place of domicile or habitual residence of the party in the country shall have jurisdiction. If a foreign court refuses to accept the case on the grounds that the court of the country where one of the parties to the divorce proceedings is located has jurisdiction over the court of the place where the marriage was concluded or the last place of residence of the domestic party. If both parties have settled abroad but the marriage is registered in the country, they can also return to the court where the marriage was concluded.

Application of 4. law: by which country's law

the two are often confused as to where the jurisdictional settlement is to be made and what rules are applied to the settlement, and the latter may have a greater impact on the outcome of the division of property.

Identity relations and property relations are determined separately.

A divorce by agreement may choose the law of the place of habitual residence of one of the parties or the law of the country of nationality; if there is no choice, the law of the common habitual residence shall apply, the law of the State of common nationality shall apply if there is no common habitual residence, and the law of the place where the institution for divorce procedures is located shall apply if there is no common habitual residence. Divorce proceedings shall be governed by the law of the place of the court, I .e., the Chinese law applicable to domestic proceedings. The property relationship between husband and wife may choose to apply the law of one party's habitual residence, the country of nationality or the location of the main property by agreement, and if not, it shall be determined in the order of the place of common habitual residence and the country of common nationality.

5. Service, Notarization and Appearance Arrangement

the cycle of foreign-related cases is mainly consumed in the procedural links. Preparing materials in place in advance can save several months.

The three most likely to slow down the progress of the link

first, service to overseas parties can be carried out through treaty channels, diplomatic channels, mail methods allowed by the country where the recipient is located, etc. If the mail service has not been received for three months and the circumstances are not sufficient to determine that it has been served, it can be regarded as service; Second, evidence formed outside the territory, evidence of identity relationship generally needs to be notarized by the host country and authenticated or annotated according to regulations, and foreign language materials must also submit Chinese translation; the third is to appear in court. If you really cannot appear in court, you can issue a notarized power of attorney and submit a written opinion. However, when it comes to the core facts of child support and emotional breakdown, the court usually still requires that my opinion be verified in an appropriate manner.

6. case proof

in practice, if one party is a Chinese citizen and has settled abroad for a long time, and the other party is in the country, the domestic party will sue for divorce in the court of its domicile. The court usually accepts the case on the basis that the defendant does not live in the country, and does not require the other party to appear in court. The trial cycle of such cases is mostly between six months and twelve months, and the main time is spent on overseas service and notarization. The scope of the specific property division shall be subject to the evidence provided by the parties and the court's finding, and the evidence formed outside the territory shall be notarized in advance and accompanied by a Chinese translation.

In practice, if both parties register their marriage abroad, and the place where they live together after marriage and their main property are both in China, the domestic court shall apply Chinese law to hear the divorce and child support issues after accepting the case. For real estate located abroad, the court generally does not directly decide on the division, but makes a discount compensation arrangement for its value, or informs the parties to claim separately to the court where the property is located to avoid making judgments that are difficult to enforce. The specific scope of division shall be subject to the evidence provided by the parties and the court's determination, and the feasibility of the execution of the judgment in the place where the property is located shall be assessed together with the overseas property.

7. Risk Alert

  • to confuse jurisdiction with the application of the law: domestic prosecution does not mean that all issues are subject to Chinese law to adjudication of property relations.
  • The material has not been notarized and authenticated: the evidence of identity relationship formed outside the territory lacks authentication or notation, and may not be accepted as a whole.
  • Failure to submit a Chinese translation: If the foreign language materials are not accompanied by a translation, the court will generally not organize cross-examination.
  • Direct claim for foreign real estate: the award is difficult to enforce, rather than advocating discount compensation is more pragmatic.
  • Neglect of delivery cycle: no overseas delivery time is reserved, and the hearing arrangement is easy to be postponed repeatedly.
  • The entrustment procedure is not standardized: if the power of attorney is not notarized and certified, the agency may not be confirmed.

8. FAQ

the other party refused to come back abroad, can I still divorce?

You can. If the defendant does not reside in the country, the court of the place of the plaintiff's domicile or habitual residence shall have jurisdiction. If the other party fails to appear in court after legal service, the court may hear the case by default and make a judgment.

Is a marriage registered abroad recognized by a domestic court?

Recognize. Marriage registration handled abroad, as long as it complies with local laws and does not violate the basic principles of Chinese laws, domestic courts generally recognize it and can directly accept divorce proceedings.

Can houses and accounts outside the country be handled together?

It can be claimed, but it is handled differently. The court usually does not directly decide to divide the foreign real estate, but rather compensates the balance through a discount, or the parties claim separately to the court where the property is located.

Is a foreign court's divorce decision valid in the country?

Recognition by the domestic courts is required. The parties may apply to the Intermediate People's Court with jurisdiction (Ningbo District, that is, Ningbo Intermediate People's Court) for recognition of the judgment. After review, if it does not violate the basic principles of my country's law and the public interest, it shall be recognized.

Practical Experience of 9. Lawyers

the first thing that gets stuck in a foreign-related divorce is often not the number of points, but "which court to sue". Foreign-related judgments are not limited to nationality: one or both parties are foreigners or stateless persons, one or both parties have their habitual residence abroad, the subject matter is abroad, or the legal facts of the marriage relationship occur abroad, and one of them is a foreign-related civil relationship, and the corresponding rules of jurisdiction and legal application apply. If the jurisdiction is wrong, a few months of waiting may only lead to a piece of paper that will not be accepted. If the right choice is made, the delivery, proof and execution will be much smoother.

In operation, the basis of jurisdiction should be established first: generally, "the plaintiff is the defendant" and the court should be determined according to the defendant's domicile or habitual residence. If the defendant is not in the territory and his whereabouts are unknown, the court of the plaintiff's domicile or habitual residence may have jurisdiction. Regular residence must be supported by continuous residence registration and payment records. Materials often involve notarization, authentication and translation, and cross-border delivery takes a long time. Therefore, the addressable address and domestic property clues of the other party should be found out as much as possible before prosecution. The situation of overseas Chinese and Hong Kong, Macao and Taiwan should be handled with reference to the corresponding regulations, and the requirements for service and certification are basically the same.

Expectation management is important. The cycle of foreign-related cases is generally too long. Don't set the time expectation too optimistic, and don't easily accept unfavorable conditions because of slow procedures. Prosecutions in China usually judge whether to grant divorce according to Chinese law, which gives you relatively clear expectations. On the division of property, domestic property is easy to check and implement, overseas property proof and implementation are difficult, the plan should be pragmatic, can be on-site discount compensation does not have to force cross-border division. To put jurisdiction and materials in front is the key to avoid detours in such cases.