Will Chinese Court Accept Parallel Divorce Litigation When Another Foreign Case is Going on?
Many clients consult with us that they have a divorce proceeding in their country, but the spouse does not disclose assets in China. In this case, can they still file a new divorce lawsuit in China court to achieve their goals?
Part 1 The Premise of Jurisdiction of Chinese Court over Parallel Proceeding
The issue of parallel proceedings often arises when either spouse files for divorce when they are of different nationalities or places of residence, including where one of the spouses initiates proceedings in the courts of two different countries, or where the parties file proceedings in separate countries.
Chinese laws clearly set out whether Chinese courts have jurisdiction over foreign-related divorce proceedings. In such cases, it is essential to determine where the marriage was registered and where the spouse settles, whether the spouse is a Chinese national, etc.
For example, if the Oversea Chinese has settled abroad, whether the marriage was registered at home or abroad, the Chinese courts will basically no longer accept divorce proceedings unless the foreign court refuses to accept the divorce case.
Another example is if the parties are married in China, and the spouse lives abroad but does not settled and has assets in China, then the divorce can be filed with the court of the spouse's domicile.
Even if the Chinese court have jurisdiction, the court may consider not accepting the case in accordance with Article 530 of the Interpretation of the Civil Procedure Law. In short, if the Chinese court reckons that it is more convenient for the parties to bring the divorce proceedings in the foreign court, the Chinese court will decline to take jurisdiction over this case.
Some couples may bring parallel proceedings to both foreign court and Chinese court. In the case of parallel proceedings, as long as the Chinese court has jurisdiction over the case according to law, the proceedings of the foreign court will not effect the jurisdiction of the Chinese court in principle.
Only if the proceedings in foreign court are over, that is, the foreign court has made a valid judgment and close the case, the Chinese court won’t parallelly accept the same case any more.
Part 2 How a Foreign Divorce Judgment Takes Effect in China
A judgement of divorce made by a foreign court does not automatically take effect in China. It has to go through the following procedures:
File a new lawsuit in Chinese court to get a recognition and enforcement of the foreign divorce judgment. Basically, pursuant to Chinese laws, the Chinese court shall review the foreign judgment and confirm if all these conditions are satisfied, including:
The foreign judgement has come into effect.
The foreign court who made the judgement has a proper jurisdiction over this case.
The judgement has been made with the attendance of the defendant who has been summoned legitimately.
This case has neither been judged by a Chinese court, nor has the Chinese court acknowledged another divorce judgement of the parties made by a third country’s court previously.
The judgement is not a detriment to the basic legal principles of Chinese law or Chinese public interest.
Part 3 After Foreign Divorce Judgment Recognized by China Court, will Spouse’s Assets be Enforced?
According to Article 2 of the Provisions of the Supreme People's Court on the Procedures for Chinese Citizens to Apply for Recognition of Divorce Judgments of Foreign Courts, the recognition of foreign divorce judgment does not apply on the division of property, living expense, and child support. Further speaking, after the foreign divorce judgment is recognized, the parties no longer has a conjugal relationship. However, other issues still need to be addressed further.
The following approaches can be considered in this kind of case:
1.Directly file a new divorce lawsuit in Chinese court. You can not only claim for divorce, but also require for the investigation of assets in China, division of couple assets, child supports, etc.
2.After the foreign divorce judgement get recognized by Chinese court, you proceed to file a case of post-divorce property disputes, which exclusively deals with the property issues.
If you have need in cross-border divorce proceeding, feel free to contact us. We’d like to provide you customized legal services.