Which country's law applies to foreign-related marriages in Ningbo? What is the law for divorce and property?
The legal application of foreign-related marriage is not a problem, but a series of problems. For the same cross-border married couple, whether the marriage is valid, whether the property is considered joint marital property, whether they can divorce, the criteria for dividing assets, which parent the children will live with, and how the inheritance will be handled—each of these matters is governed by different legal rules. If you lump all these issues together and ask, “Which country’s law applies to international marriages?”, you will only get an answer that seems plausible but is actually misleading. A more accurate statement is: first distinguish which type of foreign-related civil relations belong to, and then find the connection point article by article in accordance with the "the People's Republic of China Law on the Application of Laws for Foreign-related Civil Relations" (hereinafter referred to as the "Law on the Application of Laws"), and finally determine the applicable law. The following is carried out in the order of marriage, marital property, divorce, custody, inheritance of wills, and overseas property, with common questions and practical tips.
1. why "foreign marriage" should be applied separately
The first step is to determine what is "foreign". According to relevant judicial interpretations, if one or both parties are foreign citizens, stateless persons, or foreign legal persons, and the subject matter is outside the country, or the legal facts that create, change, or eliminate a civil relationship occur outside the country, it can be recognized as a foreign-related civil relationship; If one or both parties are residents of Hong Kong or Macao Special Administrative Regions or residents of Taiwan, foreign-related rules shall apply by reference. One spouse is a Hong Kong resident, registered for marriage in Canada, and the real estate is in Shanghai, which may make the same case involve foreign affairs or Hong Kong, Macao and Taiwan.
The second step is to distinguish two processes. The jurisdiction to resolve "which court has the right to try" is determined by the foreign-related procedural provisions of the civil procedure law and the rules of exclusive jurisdiction. The two do not overlap-mainland courts gain jurisdiction and may not apply mainland law. The order of practice is to determine the jurisdiction first and then find the applicable law according to the conflict norms.
Knowledge base cases can be illustrated. In the case of property dispute after the divorce between Lu mou 1 and Lu mou 1, Lu mou 1 is a hong kong resident. the two parties registered their marriage in Canada. the plaintiff obtained an absolute decree of divorce in the hong kong district court. the Guangzhou intermediate people's court recognized the property dispute after the divorce with the ruling of (2018) yue 01 hong kong no. 6. then the people's court of Yuexiu district of Guangzhou city accepted the property dispute after the divorce. Jurisdiction falls in the Mainland, and the applicable law is recognized as the law of the Mainland by the parties.
The second paragraph of Article 2 of the Law on the Application of Laws is set up separately: if this law and other laws do not provide for the application of laws on foreign-related civil relations, the laws that are most closely related to the foreign-related civil relations shall apply. In the property dispute case following the divorce between C and Shi, C is a Singaporean national. As the parties had neither agreed on the applicable law nor shared a common habitual residence, the court applied the laws of Mainland China pursuant to the principle of the closest connection.
What law applies to 2. marriage and the effect of marriage
Article 21 of the Law on the Application of Law stipulates that: the conditions of marriage shall apply the law of the common habitual residence of the parties; if there is no common habitual residence, the law of the common country of nationality shall apply; if there is no common nationality and a marriage is concluded in the habitual residence of one party or the country of nationality, the law of the place of marriage shall apply. This is a step-by-step search order: first look at the common habitual residence, then look at the common country of nationality, and only if there is no marriage and it is contracted in the habitual residence or nationality of one party, it falls to the law of the place of marriage.
Article 22 stipulates that the marriage formalities are valid if they are in accordance with the law of the place where the marriage is concluded, the law of the place where one party usually resides or the law of the country of nationality. This is the “one‑rule‑applies” principle: as long as the formal requirements of any applicable law indicated by a connecting point are met, the marriage shall be recognized, with the aim of ensuring the validity of the marriage to the greatest extent possible.
The difference of the three legal entities directly affects the validity judgment. According to the arrangement of the legal system of marriage and family affairs in Guangdong, Hong Kong, Macao and the Great Bay Area, monogamy is implemented in the mainland. The marriage age of male is not earlier than 22 years old and female is not earlier than 20 years old. Marriage of lineal blood relatives and collateral blood relatives within three generations is prohibited. Hong Kong has implemented monogamy since the abolition of concubine service on October 7, 1971; the age of marriage for both men and women in Macao is 16 years old. Between the ages of 16 and 18, the consent of parents or guardians or the permission of the court is required. Marriage of collateral blood relatives such as direct blood relatives and second parents is prohibited.
The treatment of defective marriage is also different: the mainland distinguishes between invalid marriage and revocable marriage; Hong Kong distinguishes between invalid marriage and revocable marriage; Macao does not have the concept of "invalid marriage", but only distinguishes between "unestablished marriage" and "revocable marriage". It can be seen that the place of registration is not equal to the place of attribution of validity. It is still necessary to search the connection points layer by layer according to articles 21 and
22to claim the validity of marriage.
3. the property relationship between husband and wife (Article 24)
Article 24 stipulates that for the property relationship between husband and wife, the parties can choose to apply the law of the place of habitual residence of one party, the law of the country of nationality or the law of the place where the principal property is located. If the parties have no choice, the law of the common habitual residence shall apply; if there is no common habitual residence, the law of the State of common nationality shall apply. This provision operates on two levels: the first level respects party autonomy, but the scope of choice is limited to three options—either party’s habitual residence, either party’s nationality, or the location of the principal assets—and cannot be designated arbitrarily; the second level establishes a hierarchy of objective connecting factors to be applied in the absence of a choice.
The Repository Retrial Case shows the applicable process. In the case of a property dispute after the divorce of Cao and Tian, Cao is a permanent resident of Macao and registered his marriage with Tian in Macao. The prenuptial agreement adopts the "general common property system" and declares that he lives in Macao. The Zhuhai Intermediate People's Court found in a retrial that the property relationship between husband and wife is governed by the laws of Macao, where they live together. According to the general common property system of the Macao Civil Code, Zhuhai real estate is the common property of husband and wife. A house in Shanghai was first recognized as a personal gift from Cao's parents by mainland law and then excluded from common property according to Article 1610 A of the Macao Civil Code. The compensation was adjusted from the original order of more than 3 million yuan to more than 1.3 million yuan. It is not uncommon to use the law of one place for characterization and the law of another place for property effects in the same case.
Fallback regression when the connection point is missing. The aforementioned case of C and Shi, because there is no agreement to choose, no common habitual residence, the court applied the most closely related mainland law, and finally due to insufficient proof of capital contribution, will be registered in Shi's name of the house as personal property. After the applicable law has been determined, whether it is common property or not is still subject to the substantive rules and evidence.
Another is to invoke the same law. In the case of District and Lu, both parties invoked Chinese law and did not raise an objection to the application of the law. The court determined that the parties had made a choice on the applicable law according to the relevant judicial interpretation. There are also differences between Hong Kong, Macao and Taiwan and foreign-related matters: foreign-related rules are applicable to Hong Kong, Macao and Taiwan, but the mainland is the joint property system of husband and wife, Hong Kong is the separate property system, and Macao is presumed to have acquired property sharing system without agreement.
What law applies to 4. divorce (Article 26, Article 27)
Article 26 stipulates: For divorce by agreement, the parties may choose to apply the law of the habitual residence of one party or the law of the country of nationality. If the parties have no choice, the law of the common habitual residence shall apply; if there is no common habitual residence, the law of the State of common nationality shall apply; if there is no common nationality, the law of the place where the institution for divorce procedures is located shall apply. In the case of divorce by agreement, parties are likewise permitted to make an initial choice; if no choice is made, the applicable law shall be determined in the following order: the place of their common habitual residence, the country of their common nationality, and the location of the authority where the divorce proceedings are conducted.
Article 27 stipulates that the law of the place of court shall apply to the divorce proceedings. This article leaves no room for the option of using the divorce law of which jurisdiction to sue. In both cases, the parties litigated in the mainland courts, and the court confirmed that the law of the mainland, the place of court, was applicable to the divorce proceedings, which was consistent with Article 27. It is important to remember that the law governing divorce is distinct from the laws governing property and child support; a decree granting a divorce does not automatically mean that property will be divided under the laws of the same jurisdiction.
The procedure of the three jurisdictions is obviously different from the substantive standard. In terms of divorce by agreement, the mainland has set up a cooling-off period for divorce and requires both parties to be present. Hong Kong distinguishes between old-style marriage, recognized marriage and regulation marriage in accordance with the Marriage System Reform Ordinance. Macao's two parties wish to divorce for more than one year and reach an agreement on maintenance, family residence and parental rights of minor children. If there are minor children, they must go through the court. In terms of divorce proceedings, the mainland standard is "the relationship has indeed broken down", the only reason in Hong Kong is "the marriage has broken down beyond redemption", and Macao includes the other party's fault, violation of obligations, de facto separation for two years, disappearance for three years, etc.
5. child support and custody
When minor children are involved, the application of the law presents a distinct orientation of protecting the weak. Article 30 stipulates that guardianship shall be governed by the law of the place of habitual residence of a party or the law of the State of nationality that is conducive to the protection of the rights and interests of the ward. Article 29 provides that the law of the place of habitual residence of a party, the law of the State of nationality or the law of the place where the principal property is located, which is conducive to the protection of the rights and interests of the dependent, shall apply. Article 25 stipulates that the law of the common habitual residence shall apply to the personal and property relations of parents and children; if there is no common habitual residence, the law of the habitual residence of one party or the law of the country of nationality that is conducive to the protection of the rights and interests of the weak shall apply.
These provisions are all “choice-of-law” norms; they do not directly refer to the law of a specific jurisdiction, but rather require that, among alternative applicable laws such as the law of the habitual residence or the law of the nationality, the one that best protects the rights and interests of the ward, the person in need of support, or other vulnerable parties be selected. The practical difficulty lies in the comparison, which needs to be compared on a case-by-case basis for alimony standards and guardianship arrangements. In the case of District and Lu, the divorce order in Hong Kong only dissolved the marriage relationship and sentenced the daughter's custody to the plaintiff, but the maintenance and property were not dealt with, so the plaintiff sued separately in the mainland; the defendant was later declared to be a person without civil capacity and appointed another guardian. It can be seen that maintenance and guardianship in cross-border situations need to be separately determined and dealt with separately.
6. Succession and Testament Article 31 of
stipulates that the legal inheritance is applicable to the law of the habitual residence of the decedent when he dies, but the legal inheritance of immovable property is applicable to the law of the place where the immovable property is located. This is a "distinction system": movable property is connected with the habitual residence of the decedent at the time of death, and all immovable property is returned to the law of the place where the immovable property is located.
article 32 stipulates: if the way of a will is in accordance with the law of the testator's habitual residence, the law of the country of nationality or the law of the testamentary act, the will is established. This is the loose rule of "choose one effective. Article 33 stipulates that the law of the testator's habitual residence or the law of the country of nationality shall apply to the validity of a will at the time of the testator's will or at the time of death.
The succession systems of the three places are different: the legal succession in the mainland is divided into two orders and must be retained; the intestate in Hong Kong is distributed according to the "Intestate Estate Ordinance", and the spouse obtains non-land real property and fixed payment first; the succession order in Macao includes the four-year de facto marriage, and there is a special retention that cannot be abandoned (except for the agreement between husband and wife). The practical approach is to determine the requirements of the law of the place where the real estate is located for the scope and share of the heirs in the case of inheritance.
Treatment of 7. Offshore Property
Article 36 stipulates: Real property rights shall be governed by the law of the location of the real property. In line with Article 31 of the legal inheritance of real estate applicable to the law of the place where the real estate is located, a stable conclusion can be drawn: in which jurisdiction the house is located, the ownership and disposition of property rights mainly depends on the law of which jurisdiction.
Therefore, when the real estate is outside the country, the mainland court can hear the relevant disputes between the parties, but the determination and disposition of the ownership of the real estate itself usually need to return to the law of the place where the real estate is located; more importantly, the judgment needs to be honored in the jurisdiction where the property is located, and also needs to be recognized and enforced. The channel is ready-made: between the mainland and the Hong Kong Special Administrative Region, there is an arrangement on the mutual recognition and enforcement of judgments in civil cases of marriage and family between the courts of the mainland and the Hong Kong Special Administrative Region, which will take effect on February 15, 2022. Judgments in civil cases of marriage and family can be mutually recognized and enforced in both places. There is an arrangement between the mainland and the Macao Special Administrative region on the mutual recognition and enforcement of civil and the mainland. The aforementioned case of District One and Lu One is that after the Hong Kong divorce decree is approved by the Mainland, the Mainland courts will handle the division of property.
Therefore, the order of dealing with overseas real estate is: first, think clearly in which jurisdiction the real estate is located and in which jurisdiction the judgment will be fulfilled in the future, then decide where to sue, whether it is necessary to promote recognition and enforcement in parallel, and finally talk about the division ratio.
8. practical advice
First, use the full agreement option. The property relationship between husband and wife can choose the law in advance according to Article 24 and divorce by agreement according to Article 26, but it must be within the scope of legal candidates and specify the law of which jurisdiction to point to, so as to avoid being regarded as not chosen due to unclear choice. Second, arrange the property agreement in advance. To agree on the ownership of property and the applicable law in a written agreement, to handle notarization as far as possible, to prepare a certified Chinese translation, clearly record the habitual residence, nationality, main property location and other points of connection.
Third, let the jurisdiction and the applicable law cooperate with each other. Divorce proceedings apply the law of the place of court, and the choice of where to sue itself affects the outcome; at the same time, pay attention to the rules of exclusive jurisdiction such as real estate, and cannot choose a court simply for the sake of choosing a law. Fourth, attach importance to the notarization and certification of documents. Materials formed abroad, such as identity, marriage, entrustment, adjudication documents, etc., usually need to be notarized, authenticated and accompanied by a Chinese translation, and these pre-work often determines whether the case can be advanced. Fifth, dynamic review connection points. The place of habitual residence, the location of principal property and nationality may change, changes in the point of connection may affect the applicable law, and long-term cross-border parties should periodically review the established arrangements.
9. Frequently Asked Questions
1. Foreign-related husband and wife have no agreement, according to which country's law the property is divided?
Let's look at Article 24 first: if there is no choice, the law of the common habitual residence shall apply; if there is no common habitual residence, the law of the common country of nationality shall apply; when neither of them is available, the principle of the closest connection shall be applied. "No agreement" does not mean "no answer", but rather a return to the objective order of connection points.
2. If you register your marriage abroad or in Hong Kong and Macao, will you admit it when you return to Ningbo?
The marriage conditions shall apply to Article 21, and the marriage procedures shall apply to Article 22. In terms of form alone, a marriage is valid if it is in conformity with one of the laws of the place where the marriage was contracted, the place of habitual residence of one of the parties or the State of nationality.
3. Must divorce be prosecuted in the mainland?
Not necessarily, depending on the governing rules. Divorce litigation shall be governed by the law of the court’s jurisdiction (Article 27); the divorce law applicable is that of the place where the action is brought. If a divorce judgment has already been rendered abroad, it must also be recognized in accordance with the relevant arrangements before it can take effect in mainland China.
4. Is the other party a resident of Hong Kong, Macao and Taiwan, "foreign-related?
It is an interregional conflict of laws and applies foreign-related rules by reference, but the substantive systems of the three jurisdictions vary greatly and the results may be significantly different.
5. If the house is outside the country, can it be divided together in the mainland court?
The real right of real estate shall be governed by the law of the place where the real estate is located (Article 36), and the legal inheritance of real estate shall also be governed by the law of the place where the real estate is located (Article 31). Mainland Chinese courts may exercise jurisdiction over cases within their territorial jurisdiction; however, for judgments to be enforced abroad, recognition and enforcement procedures are generally required.
6. How to inherit the death of relatives abroad and the inheritance abroad?
Legal succession shall be based on Article 31, and the law of the place where the real estate is located shall apply to the real estate part. The method of will shall be judged according to Article 32 and the validity of the will shall be judged according to the connecting points such as the place of habitual residence and the country of nationality at the time of the will or death. First clarify the nature and location of the estate, then apply the provisions item by item.
10. Practical Insights from a Lawyer
The trouble of cross-border marriage is often not "inseparable", but in a series of problems that belong to their own rules. Therefore, before taking action, don’t ask in a vague way, “Which country’s law applies?” Instead, break the question down: the validity of the marriage, property relations, whether divorce is possible, how assets are to be divided, with whom the children will live, and the disposition of the estate—each of these issues has its own distinct connecting factor. The first thing you need to do is to firmly establish the factual evidence regarding your nationality, habitual residence, place of marriage, and location of assets. These factors determine which rules apply at each step and which country’s law ultimately governs the matter—they are the foundation of the entire legal framework.
There is also attention to order. Jurisdiction addresses the question of “which court has the authority to hear the case,” while the choice-of-law issue concerns “which jurisdiction’s substantive law should be applied during the trial.” The two are not necessarily coextensive—obtaining jurisdiction does not automatically mean that the laws of the Mainland will apply. Therefore, before initiating a case, jurisdiction should be determined first, and then the applicable law should be identified in accordance with the conflict-of-laws rules. The choice here is inherently strategic: different applicable laws may favor one party more than another. Therefore, you should weigh factors such as the habitual residences of both parties and the distribution of their assets, and proactively assert the application of the law most favorable to your position, rather than passively waiting for the other party to set the tone.
In the end, it will come to execution. Don't think too much of the judgment. Even if overseas real estate or offshore accounts are awarded to you in a court decision, whether you can actually take possession of them depends on whether the local jurisdiction recognizes and enforces the ruling. Therefore, during negotiations, it may be prudent to pursue parallel strategies—using assets within the country that can be immediately enforced to exchange for interests in overseas holdings that are difficult to liquidate—effectively converting legal rights into tangible, readily accessible assets. If a foreign judgment is to be used in China, the applicable procedures for its recognition and enforcement should be assessed in advance. Only when the three hurdles—jurisdiction, applicable law, and enforcement—are considered together can the proposed solution be sound, ensuring that a favorable judgment does not end up being unenforceable.
Back to the original question: the answer is not the name of a jurisdiction, but a set of retrieval methods. The conditions and procedures for marriage, marital property, divorce by agreement and divorce by litigation, child custody and guardianship, inheritance and wills, and real property rights are governed by separate provisions; accordingly, the points of connection, the scope of choice, and the outcomes all differ. Among these, litigation-based divorce uniformly applies the law of the court’s jurisdiction, while marital property and divorce by mutual agreement allow the parties to make their own choices; moreover, there are institutional differences between cases involving foreign elements and those involving Hong Kong, Macao, and Taiwan.
The suggestions to the parties in Ningbo can be summarized into three sentences: first, to establish a "problem-connection point-applicable law" to check item by item against the list, instead of using a "foreign-related marriage" to package it; The second is to use as much as possible the places that can be chosen by agreement, and to write, notarize, translate and fix the evidence of connection points. The third is to plan the jurisdiction, applicable law and judgment recognition and enforcement together, first, think clearly where to play and where to cash.