Insights

Ningbo party in a foreign country, how to do divorce procedures

Ningbo Author：LuXu WANG

One party is a foreigner, or the marriage was originally registered abroad and wanted to divorce the marriage in the country. The procedures are completely different from pure domestic marriage. The most common confusion focuses on three points: where to leave, which country's law to judge, and whether to recognize the procedures handled abroad. To sort out these three points, the rest is a matter of materials.

1. situations of foreign-related divorce

foreign-related divorce refers to the parties or the place of marriage registration involving foreign factors, such as one party is foreign, one party has lived abroad for a long time, the two parties have registered their marriage abroad, or the main property is located abroad. Different factors, governing rules and applicable laws vary greatly, and the experience of ordinary divorce cannot be applied.

First distinguish the connection point

the first step in dealing with a foreign-related divorce is to identify the connection points: the respective nationalities of the parties, which party has a domicile or habitual residence in the country, where the marriage is registered, and where the property is located. The connection point determines whether the domestic courts have jurisdiction, which country's law applies, and what supporting materials are to be prepared.

Can 2. domestic courts be administered

if the defendant has a domicile or habitual residence in the country, the domestic courts may normally have jurisdiction; if the defendant is not in the country but the place of marriage, common residence or habitual residence of the plaintiff is in the country, the domestic courts may also accept it. If both parties are abroad all the year round and have no substantive connection with the country, the jurisdiction will be more restricted.

Plaintiff's domestic convenience

if the plaintiff is in China and the defendant is foreign but has substantial ties in China, it is often more economical and time-saving to sue in China. The legal fees and translation certification costs of overseas litigation are usually several times higher than those in China, and the requirements for personal presence in court are more stringent. The parties in Ningbo can first check the evidence of the defendant's habitual residence in Ningbo (residence permit, social security payment record, lease contract, etc.). If they have lived continuously for one year, they can directly sue the court with jurisdiction in Ningbo, and the cost is controllable.

3. agreement or litigation

both parties can negotiate divorce, child support, and property division, and if they meet the domestic marriage registration conditions, they can take the path of agreement registration; as long as there is a dispute or one party does not cooperate, they can only file a lawsuit at home or abroad. It should be noted that if one party is a foreigner and the marriage is registered abroad, the domestic registration authority may not accept it, and prior consultation can avoid running for nothing.

How to Apply for Domestic Approval for 4. Overseas Divorce

if a divorce has been completed abroad, it is necessary to apply to the intermediate people's court with jurisdiction to recognize the overseas divorce judgment in order to have domestic effect. The original or certified copy of the judgment, the certificate of validity, and the Chinese translation certified by notarization shall be submitted at the time of application. The review focused on whether the court of first instance had jurisdiction, whether the defendant was lawfully summoned, and whether it violated domestic public order. In Ningbo, such applications for recognition are accepted by the Ningbo Intermediate People's Court.

Only the part of the dissolution of the marriage is easy to do.

The recognition of the part of the overseas judgment that only involves the dissolution of the marriage relationship is relatively smooth; the part involving the maintenance of children, the division of property, especially the real estate in the territory, usually has to be dealt with separately. In practice, many people only apply for recognition of the status part, and the property is sued in the country.

5. Documents and Notary Certification

documents formed abroad, such as proof of identity, proof of marital status, power of attorney, etc. provided by a foreign party, generally need to be notarized by the notary institution of the host country and certified by the Chinese embassy or consulate abroad. All foreign language materials must be accompanied by a Chinese translation issued by a qualified translation agency.

Application of 6. Law

if a foreign-related divorce case is tried in the courts of our country, the law of the place of court shall apply to the divorce proceedings, that is, the law of our country shall apply. However, the property relationship between husband and wife may be subject to the agreement of the parties to choose the applicable law, and if there is no choice, the law of the common habitual residence shall apply. Different rules may apply to identity relations and property relations.

Property and identity may apply separately

the dissolution of marriage is not the same thing as the division of property abroad. Overseas real estate is often subject to the law and registration system of the place where the property is located. Whether the judgment of our court can be recognized and enforced locally needs to be evaluated before the prosecution, otherwise a judgment that cannot be landed may be obtained.

7. case proof

in practice, the foreign defendant has a habitual residence in the country and has lived for more than one year. The plaintiff sued for divorce in the domestic court. The court has jurisdiction in accordance with the law and handles the child support together. The whole process is about 7 months.

In practice, both parties register their marriage abroad and divorce abroad. After returning home, they sue for property disputes. The court first examines the recognition of overseas divorce documents, only approves the part of dissolution of marriage, and the property dispute is handled separately.

In practice, the overseas identity documents submitted by one party have not been notarized and certified, and are required to be supplemented. The round trip of materials takes about 3 months, and the total cost of translation and certification is about 15000 yuan.

8. Risk Alert

  • it was not clear whether the domestic courts had jurisdiction, and the prosecution was ruled inadmissible.
  • If you mistakenly believe that you are divorced abroad, you will naturally recognize it at home.
  • Foreign documents were submitted directly without notarization and certification, and were repeatedly required to be supplemented.
  • Connection point evidence is missing and cannot prove the other party's habitual residence in the country.
  • Ignore the differences in the application of the law and claim foreign property according to domestic rules.
  • Underestimate the time and cost of translation and certification.

9. FAQ

can foreign divorce be done in China?

If the defendant has a domicile or habitual residence in the country, the domestic courts usually have jurisdiction; it depends on the connection point and the location of the property.

Do you recognize a divorced marriage abroad?

If it is not recognized of course, it is necessary to apply to the intermediate people's court for recognition of the overseas divorce judgment, which will be effective in the country only after it has passed the examination.

How to use the documents issued abroad?

Generally, it is required to be notarized by the host country and certified by our embassies and consulates abroad, or to apply a simple form of additional certificate, with a Chinese translation.

Choose agreement or litigation?

If divorce, children and property can be negotiated and meet the registration conditions, any dispute can only be litigated.

Practical Experience of 10. Lawyers

one party is a foreigner, or the marriage was originally registered abroad and wanted to divorce the marriage in the country. The procedure is completely different from pure domestic marriage. Case handling experience reminds that the first step is not to file a case in a hurry, but to clarify the connection point: the respective nationalities of both parties, which party has a residence or habitual residence in the country, where the marriage is registered, and where the main property is. These connection points directly determine whether the domestic court has jurisdiction, which country's law should be applied, and also determine what supporting materials you should prepare. If the connection point is not sorted out, it is easy to be forced to push it over again at the stage of filing a case or trial, which is a waste of energy and expenses.

In terms of jurisdictional judgment, if the defendant has a domicile or habitual residence in the country, the domestic court can usually take charge; if the defendant is not in the country, but the place of marriage, common residence or habitual residence of the plaintiff is in the country, the domestic court may also accept it; if both parties are away all the year round and have no substantive connection with the country, the jurisdiction will be more restricted. In practice, the plaintiff is often more cost-effective in China, the legal fees and translation certification costs of overseas litigation are usually several times higher, and the arrangement of my presence is more strict. You can first check the evidence of the other party's habitual residence in the country, such as residence permits, social security records, and lease contracts. If you have lived continuously for one year, you can directly sue the court with jurisdiction, and the cost is more controllable. In terms of materials, most documents issued abroad need to go through notarization, certification and other procedures, and time should be reserved.

If you choose litigation, you should weigh the agreement or litigation in the way: if both parties can reach an agreement on divorce, children and property and conditions permit, it is more convenient to divorce by agreement; If the agreement cannot be reached or the other party does not cooperate abroad, it will be settled through domestic litigation. If you have already had a divorce abroad and need to be recognized at home, you should also prepare documents and certificates according to the corresponding procedures, pay attention to the conditions and connection of recognition, and don't think that if you do it abroad, you will automatically recognize it at home. On the whole, the time, cost and uncertainty of such cases are higher than those of ordinary divorce. It is suggested that the three things of jurisdiction, law application and document certification should be thought clearly at one time before starting work, and then decide which way to take, so as to avoid repetition in the middle.