Foreign-Related Divorce in China: Which Court, Which Law? — 12 Questions

涉外离婚十二问：在哪个法院起诉，适用哪国法律

Where one spouse is a foreign national or an overseas Chinese, or one spouse lives abroad, a divorce is no longer an ordinary divorce case: first comes the question of which country's court, at which level, and then which country's law the court will apply. Based on the Civil Procedure Law (2023 Revision), its Judicial Interpretation, and the Law on the Application of Laws to Foreign-Related Civil Relations, this guide answers the twelve questions most often asked about foreign-related divorce in China.

Part I — Jurisdiction: Where to File

01 — Which level of court hears a foreign-related divorce case?

As a rule, the basic people's court (Article 18, Civil Procedure Law). The exception is Article 19: intermediate people's courts hear first-instance cases that are (i) major foreign-related cases, (ii) cases with major impact within their jurisdiction, or (iii) cases designated by the Supreme People's Court. A foreign-related divorce therefore goes to an intermediate court only if it qualifies as a “major foreign-related case” — typically a large amount in dispute, complex facts, or many parties residing abroad — or has major local impact.

02 — One spouse is a foreign national, stateless, or a Hong Kong, Macao or Taiwan resident — or both are. Where to file?

It turns on whether the defendant resides in China. Defendant domiciled or habitually resident in China: the general rule of Article 22 applies — the court of the defendant's domicile, or of their habitual residence if the two differ.

Defendant not residing in China: a divorce is an identity-related action, so Article 23(1) applies — the court of the plaintiff's domicile, or habitual residence if the two differ.

Note: if both spouses are foreign nationals, the defendant has neither domicile nor habitual residence in China, and the case has no other connecting factor with China, Chinese courts generally have no jurisdiction.

03 — Divorce of overseas Chinese (Huaqiao): where to file?

Only after the court of the country of settlement refuses the case on jurisdictional grounds do the Chinese rules apply — split by where the marriage was concluded (Interpretation of the Civil Procedure Law, Articles 13–14).

Married in China and settled abroad; the foreign court declines because divorce must be heard where the marriage was concluded: the court of the place where the marriage was concluded, or of either party's last residence in China.

Married abroad and settled abroad; the foreign court declines because divorce must be heard by the court of the parties' nationality: the court of either party's original domicile or last residence in China.

04 — One Chinese spouse lives abroad, the other in China. Where to file?

Article 15 of the Interpretation: whichever side files, the court of the domicile of the spouse in China has jurisdiction. If the spouse abroad sues in their country of residence and the spouse in China sues in China, the Chinese court seised still has jurisdiction.

05 — Both Chinese spouses are abroad but not settled there. Where to file?

Article 16 of the Interpretation: the court of the original domicile of either the plaintiff or the defendant.

06 — Both spouses are settled abroad and already divorced there; only division of property in China is sought.

Article 17 of the Interpretation: the court of the place where the main property is located.

Part II — Applicable Law: Which Country's Law Governs?

07 — Divorce by agreement: which law applies?

Article 26 of the Law on the Application of Laws: the parties may agree to apply the law of the habitual residence or the nationality of either party. Failing agreement: the law of their common habitual residence; failing that, of their common nationality; failing that, of the place of the authority handling the divorce formalities.

08 — Divorce by litigation: which law does the court apply?

Not “Chinese law across the board” — each issue has its own rule (Articles 23–25 and 27 of the Law on the Application of Laws).

Personal relations between spouses: law of the common habitual residence; failing that, of the common nationality.

Property relations between spouses: the parties may choose the law of either party's habitual residence or nationality, or of the place where the main property is located; failing choice, the law of the common habitual residence, or failing that, of the common nationality.

Parent-child relations (personal and property): law of the common habitual residence; failing that, whichever of one party's habitual-residence law or nationality law better protects the weaker party.

The divorce itself (whether to grant it): the law of the forum — Chinese law, if sued in China.

Part III — Procedure and Aftermath

09 — How does the court serve documents on the spouse abroad?

Under Article 283 of the Civil Procedure Law (renumbered and revised in 2023), a party with no domicile in China may be served: (1) by a method prescribed in an applicable international treaty; (2) through diplomatic channels; (3) for Chinese nationals, via the Chinese embassy or consulate in that country; (4) on the litigation agent appointed in the case; (5) on the party's solely-owned enterprise, representative office, branch or authorised service agent in China; (6) on an organisation in China of which a foreign or stateless party is legal representative or principal, where that organisation is a co-defendant; (7) on the legal representative or principal, if in China, of a foreign organisation; (8) by mail where the law of that country permits — deemed served three months after posting if the receipt is not returned but delivery can be established; (9) by electronic means capable of confirming receipt, unless prohibited by that country's law; (10) by any other method the recipient agrees to, unless prohibited by that country's law. If none of these works: service by public announcement, deemed effected 60 days after the announcement is issued (shortened from three months under the previous law).

A defendant who does not respond after announcement service may be tried in default; the judgment must likewise be served by announcement. A party with no domicile in China has 30 days from service to appeal (Article 286); once that period lapses without an appeal, the first-instance judgment becomes effective.

10 — Must evidence formed abroad be notarised and legalised?

Identity-related evidence formed outside China must go through certification formalities (Article 16, SPC Provisions on Evidence in Civil Procedures): notarisation by the notarial authority of the country where it was formed plus legalisation by the Chinese embassy or consulate there, or the certification procedure in an applicable treaty. Foreign-related divorces generate much such evidence — foreign marriage certificates, birth certificates, death certificates, adoption declarations, kinship certificates. Uncertified evidence may be disregarded for authenticity, which can defeat recognition of the foreign marriage itself.

Update (from 7 November 2023): since China acceded to the Hague Apostille Convention, an Apostille replaces consular legalisation between contracting states, greatly simplifying the process; non-contracting states still require notarisation plus consular legalisation.

For Hong Kong, Macao and Taiwan: Hong Kong — attestation by a China-appointed attesting officer, reviewed, sealed and transmitted by China Legal Service (Hong Kong) Co., Ltd.; Macao — the equivalent through China Legal Service (Macao) Co., Ltd.; Taiwan — notarisation in Taiwan, transmitted via the Straits Exchange Foundation and registered and sealed by notary associations on the mainland.

11 — Will a Chinese court recognise a foreign divorce judgment?

Recognition may be applied for, but it covers only the dissolution of the marriage itself.

Where to apply: the intermediate people's court of the applicant's domicile; if domicile and habitual residence differ, of the habitual residence; if the applicant is not in China, of the applicant's original domicile in China (Article 5, SPC Provisions on Chinese Citizens Applying for Recognition of Foreign Divorce Judgments).

Scope: under Article 2 of those Provisions, the court may recognise the part of the foreign judgment dissolving the marriage; parts on division of marital property, maintenance and child custody are not recognised or enforced in China — disputes over property or custody in China must be litigated afresh in a Chinese court.

If recognition is never sought: under Article 20, the fact that a foreign court has granted a divorce does not prevent either party from filing a divorce action in China. In other words, a Chinese citizen cannot rely on an unrecognised foreign divorce judgment as an established “already divorced” status for follow-on proceedings in China — but may simply sue for divorce in China again.

Where both spouses are foreign nationals, no recognition application is needed; they may sue directly in China over division of marital property located in China and other outstanding matters.

12 — How is overseas property identified and divided?

Article 1087 of the Civil Code: on divorce, joint marital property is divided by agreement; failing agreement, the court decides according to the circumstances of the property, on the principle of favouring the children, the wife and the no-fault party — typically by confirming shares or by awarding the asset with compensating payment. The difficulty with overseas property is proof: title documents vary widely by country (some prove ownership by a property-tax bill; some bear only an official's signature and no institutional seal), and evidence-gathering is slow and costly. Parties should collect and preserve title documents early and first establish what the country where the property sits requires as proof of title, so the Chinese court can ascertain and deal with the asset.

Every step of a foreign-related divorce — forum, governing law, service, evidence, recognition of a foreign judgment — follows special rules that differ from a purely domestic divorce, and a single wrong step (filing in a court without jurisdiction, or failing to have foreign evidence certified) can get the case dismissed or stalled for years. An assessment of jurisdiction and applicable law before filing is well worth it.