Analysis on the questions concerned withForeign-related Divorce

(By ZhaoNingning )

I.Background

Thompson,the plaintiff, from Texas of USA, met Xiao Yang, the defendant, from Hefei,Anhui Province, in June of 2006. They met via an on line service whereby menand women can view each others basic information in life and then can decide ifthey wish to share more personal information. Both of the parties wrote backand forth many times via emails and on line chats. They also spoke on thetelephone many times. The plaintiff decided to go to China and meet thedefendant there and take their relationship to the next level. Then theplaintiff went there to meet the defendant and all went fine. During the periodwhen they are together, the plaintiff spent over 100,000 RMB on her clotheswith name brand and jewelry. He went back to China two months later andregistered their marriage on Feb. 16, 2010. Things changed at that moment andthe plaintiff then began to realize that money was her motivation to marry himas well as an opportunity to get a visa to the USA. On the third day of beingmarried the defendant began to ask the plaintiff "how much money he cansend to her every month". He was shocked as this had never come up beforeas she had told me she was financially stable. He was upset and disappointedand went back to Texas. Half a year later, the plaintiff told Xiao Yang hewould seek a divorce. She asked for 500,000RMB from him and then agreed todivorce. It is impossible for him to accept her offer. He declined this ideacompletely. Finally he formally retained us to represent him to settle thedivorce..

II． Questions

Accordingto Article sixty-two of Civil Procedure Law of the People’s Republic of China,for a divorce case in which a party has appointed a litigation representative,that party shall appear in the court in person unless he is incapable ofexpressing his own opinion. A party he is truly unable to appear in the courtdue to a special reason shall submit his opinion in writing to the people’scourt. In our case, the plaintiff is an American and he is unable to come toChina to complete the litigation process. How can he express his opinion on thedivorce?

Thejudge finally granted the divorce to the plaintiff on the basis of Articlethirty-two of Marriage Law of the People’s Court of PRC, stipulating thatseparation caused by incompatibility lasts two full years. However, in judicialpractice, it is very difficult to prove the two full year separation caused byincompatibility, because there are so many persons who have to live abroad dueto the reason of study, job, etc.. So it is a very important job to provewhether the separation can be supported by the judge during the divorcelitigation proceedings.

IIISolutions

i.Jurisdiction

Jurisdictionis the power and the tenure for the court to settle cases. For civil lawsuit,if the civil lawsuit brought against a citizen shall be under the jurisdictionof the people’s court located in the place where the defendant has hisdomicile, if the defendant’s domicile is different from his habitual residence,the lawsuit shall be under the jurisdiction of the people’s court located inthe place of his habitual residence. Accordingly if the defendant is a Chinesecitizen and has a domicile in China, the people’s court in the place of hisdomicile has the jurisdiction of the case. In our case, Xiao Yang is from HeFei City of An Hui Province, so the court in the place of her domicile has thejurisdiction of the divorce.

   To prove the court with jurisdiction, it isnecessary to provide enough evidence to prove the court has jurisdiction of thecase.

ii.Application of Law

Inaccordance with General Principles of the Civil Law of the People’s Republic ofChina, the marriage of a citizen of the People's Republic of China to aforeigner shall be bound by the law of the place where they get married, whilea divorce shall be bound by the law of the place where a court accepts thecase. So a divorce between a Chinese citizen and a foreigner shall be settledby the Chinese court with jurisdiction and ruled accordingly regardless of themarriage law of the party’s own country.

    The divorce between Thompson and Xiao Yang,as a Chinese citizen, shall be settled under relevant Chinese laws.

UnderChinese marriage law, if mutual affection no long exists, the judge shall grantthe divorce.

Divorceshall be granted if mediation fails under any of the following circumstances：

（1）bigamy or， cohabitation of a married person withany third party；

（2）domestic violence or， maltreatment and desertion of one familymember by another；

（3）bad habits of gamble or drug addictionwhich remain incorrigible despite repeated admonition；

（4）separation caused by incompatibility， which lasts two full years; and

（5）any other circumstances causingalienation of mutual affection

     Divorce shall be granted if one party isdeclared to be missing and the other party thereby files an action for divorce.

Inour case, we had to submit evidence to prove their lacking enough knowledge oneach other and the affection had been broken down and impossible for them toreconcile. Meanwhile, the separation has been lasted for over two and a halfyear when the plaintiff starts the lawsuit. The evidence we collected fromentry and exit administrative bureau showed that there had been not any entryrecord to prove the plaintiff’s entry into China or exit record to prove thedefendant exit China. Taking other relevant evidence into consideration, thejudge granted the divorce on the basis of separation caused by incompatibilitylasting for fully two years.

iii.Overseas Documents

Withthe increasing number of foreigners, international marriages are on the rise inChina which leads to the high divorce rate of foreign-related divorces here. Asthe foreigner or overseas Chinese, is it obligatory for him to be present atthe court hearings? In accordance with the civil procedure law, the partyinvolved in the divorce can not be absent from the court hearings, however, ifhe is truly unable to appear at the court, he can express his opinions inwriting.

Inthe case, Thompson, the plaintiff is truly unable to appear in court, he cansubmit his opinion in writing to the court to express his opinion on divorceissue. However, the opinion in writing has to be notarized in the state wherehe is residing, and then authenticated by Chinese consulate in USA which is aprocess during which the signature on the documents is certified as real andvalid.

BecauseThompson is the plaintiff, he shall submit the civil complaint as the opinionin writing. Besides the civil complaint, he has to notarize and authenticatethe power of attorney to authorize a Chinese lawyer to fully represent himduring the whole litigation process. Generally speaking, the civil complaint isconstituted of parties’ basic information, claims for divorce, propertydivision (if necessary), children maintenance (if there is any child during themarriage) and litigation fee share, and reasons and legal ground for thedivorce application.

IVConclusion

     The judicial practice concerned withforeign-related divorce is different from domestic divorces, which bring manyconfusions for the case parties in jurisdiction, filing cases, as well asnotarization and authentication. Getting a clear knowledge on solutions tothese questions is necessary to reduce the difficulty and confusion involved inthe foreign-related divorce cases.

（ZhaoNingning：Claudia@familylawcn.com  www.familylawcn.com）

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