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文/ 李丹 律师

观韬中茂（上海）家事团队

Is China a good choice? 

It all depends. Before we figure it out, we need to answer two questions. First, which court(s) have jurisdiction over the marriage dispute and second, is it necessary to get the divorce dispute solved in China?

Well, I am certainly no expert in foreign laws about jurisdiction but I will give a detailed analysis about Chinese court’s jurisdiction over foreign related divorce.

The basic rule for jurisdiction under Chinese Civil Procedure Law is that the plaintiff should institute a lawsuit at the court in the place where the defendant is located. 

The place where the defendant is located refers either the place where the defendant’s Hukou is registered or the defendant’s habitual residence. If the place where the defendant’s Hukou is registered is different from the defendant’s habitual residence, the court in the place where the defendant’s habitual residence is shall have jurisdiction.

About the Hukou and habitual residence

The Hukou is a word with Chinese characteristic and the place where a Chinese citizen’s Hukou is will be shown on the ID card but that is not 100% right if a person transfer his or her Hukou to another place without the change of the registration on the ID card.

A habitual residence place refers to the place where he has continuously resided for more than one year from the time when he left his domicile to the time of complaint, except the place where he is hospitalized. However, it remains unclear about the situation when one party involving in the foreign related marriage chooses the court located in the district where the couple used to reside for more than year but no longer lives there by the day when a divorce lawsuit is instituted. Sometimes, such a loophole is taken advantage by some parties. 

The place where a party gets the Hukou registered is comparatively stable and can be easily proved but is only applied to a Chinese citizen, while the habitual place keeps changing and the access to the proof of such a habitual place sometimes is quite limited, but is applied to any one as long as he or she has habitual residence in China.

The proof for the habitual residence has to be prepared when a foreign related divorce case is initiated. Such proof is required by courts before the case is accepted and the other party will file objection to jurisdiction if the proof turns out to be not true.

If no residence in China

An exception exists to the basic rule. The situation is when a divorce lawsuit is filed against a party who has no residence in China, the court in the place where the plaintiff get Hukou registered has jurisdiction. 

If no such domicile residence exists or if such domicile residence is different from the habitual place where the plaintiff has, the court in the habitual place will have jurisdiction. There is one situation that remains unclear when a foreigner who has habitual residence in China wants to institute a divorce lawsuit against the other party who is away from the habitual place for some time but whose habitual residence is unknown or who has no habitual residence at all and who only keeps on changing the residence from time to time, will the court in the place where the foreigner’s habitual residence is have jurisdiction? 

However, when such a situation occurs, a good communication is necessary with the court for case acceptance and chance exists for the court to accept the case. But risk does exist when the other party present objection to jurisdiction. However, courts in Shanghai now exercise jurisdiction over such cases, where two foreigners are involved with only one foreigner having habitual residence in Shanghai.

Evidences for habitual residence

Evidences for habitual residencevary and the following are the ones commonly used.

A note issued by local residents’ community to clarify that the person involving in the marriage dispute has been living the community for more than a year is sufficient enough. If you have no idea where to find such residents’ community, a note issued by the entity in charge of the property management in the residential area where you or the other party lives can also do. 

If either of the notes is available, a lease agreement for the place where you live or the other party can be presented. 

The entry into China record does not necessarily indicate a continuous residence in the same place and therefore may not be used. Or a certificate issued by local police station where a foreigner needs to report and register his or her residential place can be useful, too.

When you have no access to such notes or lease agreement when the other party’s habitual residence is involved, wait until the right chance comes.

In a word, as long as a Chinese citizen is involved in a foreign related marriage, the court in China has jurisdiction and it is only about the choice of which court. For a foreigner, when he/she has habitual residence under Chinese law, a court in China may have jurisdiction if the above listed certain conditions are satisfied.