Recognition and Enforcement of Chinese Divorce Decrees Abroad

Abstract:Individuals who registered their marriage abroad and have been residing and working in China for an extended period may face the challenge of resolving divorce disputes swiftly. Returning to the country of marriage registration could be time-consuming and costly, and may not meet the residency requirements for litigation in their home country. As a result, they might consider initiating divorce proceedings in Chinese courts. This article explores the conditions under which Chinese divorce decrees or mediation agreements are recognized and enforced in foreign jurisdictions, especially when one party is a Chinese national or when both parties, regardless of nationality, have their habitual residence in China.

Introduction:

Individuals who have registered their marriage overseas and are long-term residents and workers in China may seek a prompt resolution to divorce disputes. However, returning to the place of marriage registration can be not only time-consuming and financially draining but also may not fulfill the residency requirements for litigation in their home country. Consequently, they may contemplate filing for divorce in Chinese courts.

Jurisdiction and Enforcement of Chinese Divorce Decrees:

When one party holds Chinese nationality or both parties, regardless of their nationality, have their habitual residence in China and wish to file for divorce in China, it is crucial to determine whether Chinese courts have jurisdiction. Additionally, a significant issue arises: whether foreign countries will recognize and enforce divorce decrees or mediation agreements issued by Chinese courts.

Analysis of the Validity of Chinese Divorce Decrees in Other Countries:

1. Bilateral Judicial Assistance Treaties between China and Foreign Countries:

China achieves mutual recognition and enforcement of judicial decisions through bilateral judicial assistance treaties with foreign countries. Therefore, only the civil and commercial judgments and arbitration awards from countries that have signed such treaties with China are likely to be recognized and enforced in China.

2. Absence of Bilateral Judicial Assistance Treaties between China and Foreign Countries:

Suppose the parties to a divorce in Chinese courts hold the nationality of, or later settle in, a country (hereinafter referred to as the "using country") that does not have a bilateral assistance treaty with China. In that case, the divorce decree or mediation agreement issued by Chinese courts does not automatically take effect abroad.

In general, after obtaining a divorce document from a Chinese court, the parties must have it notarized locally, then proceed to the relevant Chinese foreign affairs office for external certification, and finally, obtain consular certification from the using country's embassy or consulate in China. This process will likely lead to the recognition of the divorce document by foreign local courts. If the using country is a contracting state of the Hague Convention, an application for Hague certification can be made to the Chinese foreign affairs office.

In the absence of a civil and commercial judicial assistance treaty between two countries, it is not guaranteed that a foreign country will automatically recognize Chinese judgments or mediation agreements, meaning the validity of Chinese divorce documents abroad cannot be assured. However, generally, as long as the judgment or mediation agreement does not violate public order and good morals, does not contravene national interests, and there is no fraud involved, foreign courts typically recognize documents that have undergone notarization and certification.

Conclusion:

Regarding the content of the divorce document, some countries may only recognize the fact of divorce and not address issues such as property division or child custody. Therefore, if recognition and enforcement of a Chinese court's divorce decree are required abroad, it may be necessary to go through local legal procedures to apply for recognition and enforcement and may require the provision of certified translations of the Chinese court's judgment, among other documents.