CHINESE FAMILY LAW: MARRIAGE, CHILDREN, PROPERTY AND PROCEDURES
For litigants and lawyers alike, even those in China, the Chinese legal system at first glance can appear impenetrable and even intimidating. This article is intended to provide a summary of current Chinese laws and procedures pertaining to international family law litigation, and an overview of how these laws have been implemented in the Chinese judicial system. The Chinese legal system services an enormous population with an equally daunting number of family law cases. To fulfill its mission of improving judicial competence and fairness in the recent decades, the system has been gearing towards efficiency and practicality as well as promotion of children’s welfare and gender equality.
The Chinese Legal System and the Judiciary: Overview
China is a civil law jurisdiction. As is common among civil law systems, in Chinese courts there are no civil juries and fact-finding is conducted primarily by judges, rather than through adversarial proceedings. The Chinese judiciary is part of the Chinese national bureaucracies that are selected and appointed by the People’s Congress.
China has a four-tiered, hierarchical court system: county trial courts, prefecture intermediate courts, province higher courts and the Supreme People’s Court of the People’s Republic of China. Most divorce actions are first commenced in the trial courts, named the People’s Courts of the First Instance of a county or a municipal district. China does not have family courts that specialize in family law matters.
Chinese Family Law Statutes, Judicial Rules and Regulations
The principle source of laws governing marriage, divorce, marital property and child custody is China’s Marriage Law of the People’s Republic of China (2001 Amendment) [中华人民共和国婚姻法 (2001修正) and General Principles of the Civil Law of the People’s Republic of China (2009 Amendment) [中华人民共和国民法通则(2009修正)]. The Marriage Law specifies the grounds for divorce, defines marital property rights and identifies child custody and child support obligations.
To interpret and implement the legislatures, the Supreme People’s Court of the People’s Republic of China issues judicial rules as mandatory guidelines for all lower courts to follow. Judicial rules relevant to family law include:
§ Interpretation of the Supreme People’s Court on Several Issues in the Application of Marriage Law of the People’s Republic of China (I), (II), (III) [最高人民法院关于适用中华人民共和国婚姻法若干问题的解释 (一), (二), (三)]
§ Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of the General Principles of Civil Law of the People’s Republic of China [最高人民法院关于贯彻执行中华人民共和国民法通则若干问题的意见]
In addition to statutes and judicial rules, the local courts are bound by judicial guidelines issued by provincial higher courts and various local government regulations enacted as instrumental tools to implement the national legislatures. For instance, when determining child custody issue, a trial court located in Shanghai must follow the procedural and sustentative rules set forth in the Guidance of the People’s Higher Court of Shanghai on Application of Interpretation of the Supreme People’s Court on Several Issues in the Application of Marriage Law of the People’s Republic of China. In other words, the provincial higher court guidelines (interpretations of statutes) and the Supreme People’s Court’s judicial rules are indispensable sources of Chinese law.
Chinese Family Law
At the outset, Chinese family law system intends to ensure protection of families, women, children and the elderly in accordance with the internationally accepted fundamentals and to promote the Chinese tradition of family harmony.
Divorce in China There are two methods for obtaining divorce in China. One is to register a mutually-agreed upon divorce through the marriage registration bureau, and another is to obtain a divorce judgment through the court system.
The divorce registration process can be quick and easy. If the parties have reached an agreement regarding child custody, child support and joint property/debts, the parties can jointly register a divorce at the marriage registration office of the Bureau of Civil Affairs, located at their place of residence. To commence the process, the petitioning couple simply makes their joint request to the marriage registration office. Usually, as a matter of formality, the registration office will first conduct informal mediation and marriage counseling for the petitioning couple. If reconciliation after mediation is unlikely, a divorce will be granted within a month. The divorce registration process is an administrative process and is regulated by the Bureau of Civil Affairs pursuant to the Regulation on Marriage Registration (2003) [婚姻登记条例 (2003)]. Pursuant to Article 10 of the Regulation on Marriage Registration, a couple may commence the divorce registration process as long as one party is a Chinese citizen.
In the recent years, divorces are increasingly being litigated in the courts rather than being resolved administratively in China. China does not have a family court system specializing in disputes relating to the family and children. Divorce-related disputes, such as distribution of marital property, child custody and visitation are typically litigated in the matrimonial divisions of trial courts. A spouse may bring a divorce action in China by filing a complaint in the People’s Court with proper jurisdiction.
Child Custody, Visitation and Child Support Pursuant to the General Principles of the Civil Law, the Marriage Law and the People’s Supreme Court’s judicial rules, divorce parents may enjoy joint custody, shared custody, or split custody of their child(ren) by mutual agreement.
When child custody is in dispute, the People’s Courts are required to make decisions in the best interest of the child while considering statutory factors provided in the Opinions of the Supreme People’s Court on Several Issues Concerning the People’s Courts’ Handling Child Custody. Generally, mothers are granted custody of children under the age of 2, and the court is required to consider a child’s wishes when the child is 10 years old or older.
Child support is determined based on a parent’s income and a modest standard of living for the region where the child resides. The People’s Supreme Court’s judicial rules provide that the non-custodial parent’s annual child support obligation should be 20-30% of his/her annual income for one child and no more than 50% of his/her annual income for two children, and a parent’s support obligation terminates when the child turns 18. When determining child support, the courts also take into consideration of the parent’s actual financial ability, the child’s actual needs, and the average standard of living at the locality where the child resides.
Distribution of Marital Property China recognizes the community property regime. Most property acquired during the marriage, including gifts and inheritance, is owned jointly by both spouses and is divided equally upon divorce.
Spousal Support A non-moneyed spouse who is unable to maintain the basic standard of living where she/he resides is entitled to spousal support.
Chinese Law Governing International Family Law Matters
Chinese Civil Procedure Law defines international civil litigation as a “civil case involving foreign elements” or “foreign-related civil disputes.” In general, a family law case would be treated as a civil action involving foreign elements if (1) at least one party is not a Chinese national; or (2) at least one party does not reside in China; or (3) the subject matter of the dispute is located outside of China. Part Four of the Civil Procedure Law of the People’s Republic of China (2007 Amendment), entitled “Special Provisions of Civil Procedures for Cases Involving Foreign Elements” and the Law of the People’s Republic China on Choice of Law for Foreign-related Civil Relationships (2010) govern the special procedures applicable to international family law cases in Chinese courts.
Jurisdiction Generally, a Chinese court’s jurisdiction is based on the defendant’s domicile, a jurisdictional doctrine which is commonly characterized as “plaintiff’s accommodating defendant.” The People’s courts may exercise jurisdiction over a given defendant who is domiciled, or habitually resides within the territorial boundary of the court, regardless of the defendant’s nationality. A divorce action generally can be brought in the People’s court at the place of the defendant’s habitual residence, where the defendant has continuously resided for more than one year. However, under the Chinese Civil Procedure Law, if a civil lawsuit concerning personal status, such as marriage, is brought against a person not residing in China, the People’s Court of plaintiff’s domicile or habitual residence shall have jurisdiction.
Pursuant to Special Provisions of Civil Procedures for Cases Involving Foreign Elements of the Chinese Civil Procedure Law and to the Supreme People’s Court’s Opinions on Application of the Civil Procedure Law of the People’s Republic of China generally a People’s Court acquires jurisdiction if at least one of the parties is a Chinese citizen, regardless that one or both of the spouses reside in a foreign country.
No specific statutory provisions or judicial rules prescribe whether a Chinese court can acquire jurisdiction over a couple’s divorce and related issues if neither party is a Chinese citizen. Generally, Chinese courts decline jurisdiction when both parties are non-Chinese nationals, except when: (1) the marriage was contracted in China; or (2) at least one party’s habitual residence is in China; or (3) the parties both consent to submit to Chinese courts’ jurisdiction and have reached a written settlement agreement that has resolved all property, support and child custody issues.
It is important to note that a Chinese court located at either parent’s habitual residence may acquire jurisdiction over child custody and support issues. Child custody is a matter of a parent’s civil relationship under Chinese law. Therefore, child custody issues are under the jurisdiction of a court with proper personal jurisdiction over a parent or parents.
Applicable Law Pursuant to the Law of the People’s Republic China on Choice of Law for Foreign-related Civil Relationships (2010), in a family law case involving a foreign party, the People’s Court must determine whether the Chinese court should apply Chinese law or the laws of a foreign country; when there is a conflict between the Chinese and foreign law. In nutshell, Chinese law applies in divorce actions litigated in Chinese courts.
However, by consent the parties may opt out Chinese law and choose to apply the laws of their country of habitual residence or the laws of their country of nationality to a divorce settlement agreement. In addition, when enforcing a marital agreement, Chinese courts apply the law of the country which a marital agreement chooses. The examples below illustrate the choice of law doctrine in Chinese law.
Example 1: Husband and Wife are both American citizens living in China. The parties do not meet the residency requirements to obtain a divorce in their home state in the U.S. because they have been living outside of the state for more than a year. The couple may make a divorce settlement agreement in conformity with New York law and obtain a divorce in China based on the settlement agreement. The divorce settlement agreement and the Chinese divorce decree are both legally binding in China and in the US.
Example 2: Husband is a Canadian citizen and Wife is an American citizen. Wife lives in China with the children. The parties reach a settlement agreement in conformity with both Ontario law and New York law. The parties may obtain a divorce in China based on the divorce settlement agreement. The divorce settlement agreement and the Chinese divorce decree are both legally binding in China and in the US.
Example 3: Husband is an American citizen and Wife is a Chinese citizen. Both parties reside in New York. Wife returns to China and bring a divorce action. The parties may reach a settlement agreement under New York law and obtain a divorce decree from the Chinese court. The divorce settlement agreement and the Chinese divorce decree are both legally binding in China and in the US.
Example 4: Husband and Wife are both Chinese citizens. The couple has residences both in China and the U.S. The parties may choose to obtain a divorce from a Chinese court based on a divorce settlement agreement that complies with New York law and Chinese law. The divorce settlement agreement and the Chinese divorce decree are both legally binding in China and in the US.
Example 5: Groom and Bride are both American citizens living in China. The couple may choose to enter a prenuptial agreement in conformity with New York law. Such prenuptial agreement will be legally binding in a Chinese court and a New York court.
Example 6: Husband and Wife are both American citizens. The couple decides to relocate to China with the children for Husband’s promotion to a position in China. Husband and Wife reach a post-nuptial marital agreement under New York to provide the terms of separation in the event the marital relationship breaks down. The couple’s marital agreement can be enforced in a Chinese court pursuant to New York law.
Recognition of a Foreign Country Divorce Judgment in China As a civil law country, China does not automatically recognize or enforce a foreign court judgment or order. Pursuant to the Chinese Civil Procedure Law, a People’s Court shall examine and review a foreign judgment before the court recognizes or enforces it. The scope of such review, however, is limited to formalities of the foreign judgment without visiting the merits of the foreign court’s determination. After the review, the People’s Court may issue an order of recognition or a writ of enforcement if the foreign judgment does not violate any Chinese law or public policy.
The Supreme People’s Court’s Opinions on Relevant Questions Concerning People’s Courts’ Handling Petition for Recognition of Divorce Judgment Made by a Foreign Court and Provisions Regarding Procedural Issues of Chinese Citizens’ Application for Recognition of Foreign Court’s Judgment of Divorce provide the grounds on which a foreign country divorce judgment cannot be recognized or enforced in China. Specifically, a People’s Court may deny a petition for recognition of a foreign divorce judgment if the judgment was entered by a court without proper jurisdiction or the judgment offends Chinese public policy. The Supreme People’s Court emphasizes that if the judgment was made in default, the petitioner shall provide the people’s court with evidence that the defendant was properly notified of the divorce action. In addition, these Opinions provide the procedures for recognizing and enforcing a foreign country divorce judgment in Chinese courts.
Enforcement of Judgments and Court Orders in Chinese People’s CourtA party by application, or a judge on her own motion, may initiate an enforcement proceeding. Under the Supreme People’s Court Rules on Several Matters Concerning Enforcement Work in the People’s Courts, a judge may start an enforcement proceeding, on her own motion, to enforce judgments for child support, spousal support, medical expenses and court decisions on fines and detentions.
Upon receipt of a party’s petition or a judge’s referral for enforcement, a People’s Court’s enforcement division will serve an execution notice to the judgment obligor, instructing him or her to comply with the judgment within a specified period of time. If the judgment obligor fails to comply, the court’s enforcement division will take actions, such as sequestration, to compel the debtor to satisfy the judgment. If the judgment obligor or his/her property is not within the territory of China, a People’s Court may also send the enforcement request to a foreign court pursuant to the bilateral or international treaties, or to reciprocity.
While a civil action is pending or before a judgment or court order is satisfied, a People’s Court may prevent a person from leaving China pursuant to the Law of the People’s Republic China on Control of the Entry and Exit of Aliens [中华人民共和国外国人出入境管理办法(1985)], the Law of the People’s Republic China on Control of the Entry and Exit of Citizens [中华人民共和国公民出入境管理办法(2009)], and the Detailed Rules for the Implementation of the Law of the People’s Republic of China Governing the Administration of Entry and Exit of Foreigners (2010 Revision) [中华人民共和国外国人出入境管理办法实施细则 (2010修订)]. In the context of matrimonial matters, a People’s Court can therefore effectively retain a party who has failed to comply with a divorce judgment or retain a parent with his/her child(ren) in China during a custody proceeding. It is important to note that China’s strict border control can be invoked to prevent abduction of children to or from China.
An examination of Chinese family law system demonstrates that in the past decade China has embraced the fundamental legal doctrines commonly adopted in civil law countries and has formalized its judicial system. Nevertheless, mapping out a clear path in the Chinese family law system not only requires comprehensive knowledge of Chinese family law but also in-depth understanding of Chinese legal culture and practice. Please direct your China law related inquiry to [email protected].