As China’s internationalization continues to deepen, cross-border marriages are increasing, and consequently, divorce issues are becoming more prominent. Since cross-border marriages involve different legal systems and judicial institutions across countries, divorce judgments rendered by courts of countries that have not concluded judicial assistance agreements with China cannot directly take legal effect in China. According to Article 20 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” [1], even if the marital relationship between the parties has been dissolved by a foreign court divorce judgment, if the judgment has not been applied for recognition in a Chinese court, it does not prevent the other party from filing a new divorce lawsuit in a Chinese court. In such circumstances, if one party needs to deal with the marital relationship in China or community property (property disputes after divorce), they will need to go through the procedure of applying to a Chinese court for recognition of the foreign court divorce judgment. This article, based on relevant laws, regulations, and practical experience, summarizes the specific procedures and important considerations.

I. Who Can Apply?

According to Articles 1 and 2 of the “Provisions of the Supreme People’s Court on Issues Related to the Acceptance of Applications for Recognition of Foreign Court Divorce Judgments by People’s Courts” [2], applicants for recognition of a foreign court divorce judgment in a Chinese court can be Chinese citizens or foreign citizens whose former spouse is a Chinese citizen.

In Other Words

At least one of the spouses must be a Chinese citizen for the Chinese court to accept the application. If both spouses are foreign citizens at the time of divorce, the people’s court will not accept the application.

II. Which Court Has Jurisdiction?

According to Article 5 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” [3]:

(1) Chinese citizens: The application shall be under the jurisdiction of the intermediate people’s court at the applicant’s domicile. If the domicile differs from the habitual residence, the intermediate people’s court at the habitual residence has jurisdiction. If the applicant is not in China, the intermediate people’s court at the applicant’s original domicile in China has jurisdiction.

(2) Foreign citizens: A foreign citizen whose former spouse is a Chinese citizen may apply to the intermediate people’s court at the former spouse’s domicile.

III. What Materials Need to Be Submitted?

According to Articles 3, 4, 8, 9, 10, and 11 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” [4], combined with the content of the “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents” [5], the required documents include:

1. A written application stating the following: (1) the applicant’s name, nationality, gender, age, employer, former address, and current address; (2) which country’s court rendered the divorce judgment, the result and date; (3) the circumstances of the parties’ summons and appearance in the foreign divorce proceedings; (4) the reasons for the application and the request; (5) other information that needs to be stated.

2. Original and copy of the applicant’s valid identification documents, and a copy of the respondent’s valid identification documents.

3. The original foreign court divorce judgment.

4. If the foreign court divorce judgment does not indicate that it has taken effect or the effective date, a document proving that the judgment has taken effect, issued by the foreign court that rendered the judgment, shall also be submitted.

5. If the applicant was the plaintiff in the foreign court divorce proceedings, relevant documents proving that the foreign court lawfully summoned the defendant to appear shall also be submitted.

6. If the respondent in the foreign court divorce proceedings resides in China and is the applicant, and can submit the foreign court’s notice of response or summons to appear, the foreign court divorce judgment may be presumed to be authentic and effective.

7. If the country where the foreign court that rendered the divorce judgment is located is a contracting state to the “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents” and the Convention has taken effect in that country, the above foreign divorce judgment and supporting documents shall be notarized by the foreign notary authority and certified with an apostille by the competent authority of the contracting state, along with a certified accurate Chinese translation.

If the country where the foreign court that rendered the divorce judgment is located is not a contracting state to the “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents,” the above foreign divorce judgment and supporting documents shall be notarized by the foreign notary authority and authenticated by the Chinese embassy or consulate in that country, or go through the certification procedures stipulated in relevant treaties between China and that country, along with a certified accurate Chinese translation.

*Tip:

For the list of contracting states to the “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents” (as of October 23, 2023) and the list of local foreign affairs offices authorized to issue apostilles, see:

https://www.fmprc.gov.cn/web/wjbxw_new/202310/t20231023_11165858.shtml

IV. How Long Does the Application Process Take?

According to Article 6 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” [6], after receiving the application, the people’s court shall, upon review, accept the case within 7 days if it meets the acceptance conditions. If it does not meet the conditions, the court shall notify the applicant of the rejection within 7 days, stating the reasons.

After acceptance, there is currently no clear statutory time limit for the court to issue a ruling recognizing or dismissing the application for recognition of a foreign divorce judgment.

V. When Will the Application Not Be Accepted?

According to Article 18 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments,” after the people’s court accepts a divorce lawsuit, if the plaintiff changes the claim to apply for recognition of a foreign court divorce judgment, or if the defendant separately applies for recognition of a foreign court divorce judgment, such applications will not be accepted.

VI. When Will a Foreign Court Divorce Judgment Not Be Recognized?

According to Article 12 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments,” upon review, a foreign court’s divorce judgment will not be recognized in any of the following circumstances:

(1) The judgment has not yet taken legal effect; (2) The foreign court that rendered the judgment does not have jurisdiction over the case; (3) The judgment was rendered in the defendant’s absence without lawful summons; (4) The divorce case between the parties is being tried by a Chinese court, or a Chinese court has already rendered a judgment, or a divorce judgment rendered by a court of a third country between the parties has already been recognized by a Chinese court; (5) The judgment violates the basic principles of Chinese law or endangers China’s national sovereignty, security, or social public interest.

VII. Can the Application Be Withdrawn After Filing?

According to Article 21 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments,”

The applicant may withdraw the application, but after withdrawal, no new application may be filed. However, the applicant may file a divorce lawsuit with a people’s court.

VIII. What Are the Consequences of a Court Dismissing the Application?

According to Article 22 of the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” [7], if the application meets the requirements, the court shall issue a ruling recognizing the foreign court divorce judgment. If the application does not meet the requirements, the application shall be dismissed.

After the application is dismissed, the applicant may not file a new application but may file a separate divorce lawsuit in a Chinese court.

The ruling cannot be appealed and takes legal effect upon service.

Finally, it is important to note that the “Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments” states that “the provisions of this regulation do not apply to the recognition and enforcement of judgments on the division of community property, alimony, and child support in foreign court divorce judgments.” In other words,

China’s recognition of foreign divorce judgments only applies to the dissolution of the marital relationship. The recognition of judgments on the division of community property, alimony, and child support in the judgment is not granted.

Therefore, if issues concerning property and child custody need to be resolved, a separate lawsuit must be filed with a Chinese court.

Additionally, divorce judgments rendered by “Hong Kong courts,” “Macao courts,” and “Taiwan courts” that require recognition and enforcement by Mainland Chinese courts are subject to the following legal provisions: the “Arrangement of the Supreme People’s Court on Mutual Recognition and Enforcement of Judgments in Matrimonial and Family Civil Cases between the Mainland and the Hong Kong Special Administrative Region,” the “Arrangement of the Supreme People’s Court on Mutual Recognition and Enforcement of Civil and Commercial Judgments between the Mainland and the Macao Special Administrative Region,” and the “Provisions of the Supreme People’s Court on Recognition and Enforcement of Civil Judgments of Taiwan Region Courts.”

Notes (scroll up and down for more):

[1] Article 20 of the Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments: Even if the marital relationship between the parties has been adjudicated by a foreign court, if no application for recognition has been made to the people’s court, it does not prevent one party from separately filing a divorce lawsuit with the people’s court.

[2] Provisions of the Supreme People’s Court on Issues Related to the Acceptance of Applications for Recognition of Foreign Court Divorce Judgments by People’s Courts

I. Where a Chinese citizen applies to a people’s court for recognition of a foreign court divorce judgment, the people’s court shall not refuse acceptance on the grounds that the citizen did not conclude the marriage relationship within China; where a Chinese citizen applies for recognition of a divorce judgment rendered by a foreign court in the citizen’s absence, the citizen shall simultaneously submit to the people’s court relevant documents proving that the foreign court lawfully summoned the citizen to appear.

II. Where a foreign citizen applies to a people’s court for recognition of a foreign court divorce judgment, if the former spouse is a Chinese citizen, the people’s court shall accept the application; if the former spouse is a foreign citizen, the people’s court shall not accept the application, but may advise the applicant to directly apply for marriage registration with the marriage registration authority.

[3] Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments

Article 5: The application shall be accepted by the intermediate people’s court at the applicant’s domicile. If the applicant’s domicile differs from the habitual residence, the intermediate people’s court at the habitual residence shall accept the application.

If the applicant is not in China, the intermediate people’s court at the applicant’s original domicile in China shall accept the application.

[4] Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments

Article 3: To apply to a people’s court for recognition of a foreign court divorce judgment, the applicant shall submit a written application, accompanied by the original foreign court divorce judgment and a certified accurate Chinese translation; otherwise, the application shall not be accepted.

Article 4: The application shall state the following matters:

(1) The applicant’s name, gender, age, employer, and address; (2) Which country’s court rendered the judgment, the result, and the date; (3) The circumstances of summons and appearance; (4) The reasons and request of the application; (5) Other information that needs to be stated.

Article 8: After accepting the application, if the foreign court divorce judgment does not indicate that it has taken effect or the effective date, the people’s court shall require the applicant to submit a document proving that the judgment has taken effect, issued by the court that rendered the judgment.

Article 9: If the applicant was the plaintiff in the foreign court divorce proceedings, the people’s court shall require the applicant to submit relevant documents proving that the foreign court lawfully summoned the defendant to appear.

Article 10: The supporting documents required under Articles 8 and 9 shall be notarized by the foreign notary authority and authenticated by the Chinese embassy or consulate in that country, or go through the certification procedures stipulated in relevant treaties between China and that country. The applicant shall also provide a certified accurate Chinese translation.

Article 11: If the respondent in the foreign court divorce proceedings who resides in China is the applicant and encounters difficulties in submitting the supporting documents and notarization/authentication required under Articles 8 and 10, but can submit the foreign court’s notice of response or summons to appear, the foreign court divorce judgment may be presumed to be authentic and effective.

[5] Convention Abolishing the Requirement of Legalisation for Foreign Public Documents

From November 7, 2023, public documents sent from China to other contracting states for use need only undergo an apostille as provided for in the Convention before being sent to other contracting states for use, without the need for consular authentication by Chinese and contracting state embassies or consulates in China. Public documents from other contracting states sent to Mainland China for use need only undergo an apostille in that country, without the need for consular authentication by that country and Chinese embassies or consulates in that country.

[6] Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments

Article 6: After receiving the application, the people’s court shall, upon review, accept the case within 7 days if it meets the acceptance conditions of these provisions; if it does not meet the conditions, it shall notify the applicant of the rejection within 7 days, stating the reasons.

[7] Provisions of the Supreme People’s Court on Procedures for Chinese Citizens Applying for Recognition of Foreign Court Divorce Judgments

Article 15: The ruling takes legal effect upon service.

Article 22: After the applicant’s application is dismissed, no new application may be filed, but a separate divorce lawsuit may be filed with the people’s court.