(I) Divorce by agreement
If the overseas Chinese, compatriots from Hong Kong, Macao and Taiwan, as well as the overseas Chinese and Chinese citizens voluntarily divorce and have reached an agreement on the custody and property of their children, and properly handled, both men and women can jointly apply for divorce registration in the competent civil affairs department (handled by Beijing Civil Affairs Bureau in Beijing). Both parties must be present in person to handle the divorce procedures. Even if a lawyer or other person is entrusted to act as an agent, I must go through the formalities in person and bring the following certificates and supporting materials: (1) my account book. Mainland residents shall issue their own household register (2) ID card. When mainland residents issue resident identity cards, foreigners shall issue their own valid passports or other valid identity documents. (2) marriage certificate. The party concerned holds the marriage certificate issued by the marriage registration authority or the Chinese embassy (consulate) abroad. (3) divorce agreement. A divorce agreement signed by both parties. The agreement states the intention of both parties to divorce voluntarily and the consensus on matters such as child support, property division and debt handling. (4) photos. Two recent half length bareheaded photos of 2-inch single person shall be submitted by each party.
Both parties shall fill in the declaration of application for divorce registration in the civil affairs department and sign or press the fingerprint; both parties shall sign the divorce agreement in person in front of the marriage registration staff.
The marriage registration authority shall examine the application within 30 days from the date of accepting the application for divorce registration. For the parties who meet the conditions for divorce, the notice of receiving the divorce certificate shall be issued. The two parties applying for divorce registration shall, within 30 days from the date of receiving the notice of obtaining the certificate, collect the divorce certificate in person from the Civil Affairs Department, and one party shall not collect the divorce certificate on behalf of the other party or entrust another person to collect the divorce certificate. If the party fails to obtain the divorce certificate within the time limit, it shall go through the divorce registration application formalities again. If it is necessary to extend the time limit for obtaining the license due to special circumstances, it shall be approved by the Civil Affairs Department, but the extension time limit shall not exceed 3 months.
It can be seen from this that if one of the foreign parties can go back to China to handle it, it can completely adopt the form of agreement. As long as both parties have no dispute on the custody and property of their children, it is not difficult to go to the civil affairs department with jurisdiction to handle the divorce procedures.
(II) Litigation divorce
If one party can’t go back home from abroad to handle the divorce case in person, he must go through the divorce procedure through litigation. That is to say, if one party can’t return home, whether the two parties agree to divorce or not, they must file a divorce lawsuit with the court. A party in a foreign country may entrust a lawyer in China to appear in court as an agent in response to an action, but it must provide complete written materials that meet the requirements of legal norms. These written materials include power of attorney, divorce opinion, valid proof of the identity of the parties, etc. the power of attorney, civil indictment and divorce opinion must be notarized by the local notary office, certified by the Chinese embassy or consulate abroad, or directly notarized by the Chinese embassy or consulate abroad. Divorce opinions include written opinions on agreeing or disagreeing with divorce, and written handling opinions on property division, child support, etc. Here we mainly talk about the content of divorce in foreign litigation.
1. Domestic lawyers entrusted by parties involved in foreign-related divorce
In the case of divorce involving foreign affairs, a lawyer of our country must be entrusted to act as his agent. Article 239 of the Civil Procedure Law of the people’s Republic of China stipulates that if foreigners, stateless persons, foreign enterprises and organizations need to entrust lawyers to act as agents for litigation in the people’s court when they sue or respond to lawsuits, they must entrust lawyers of the people’s Republic of China.
At the same time, it is stipulated that when a foreigner, stateless person, foreign enterprise or organization that has no domicile in the territory of the people’s Republic of China entrusts a lawyer or other person of the people’s Republic of China to represent a lawsuit, the power of attorney sent or entrusted from outside the territory of the people’s Republic of China shall be certified by the notary organ of the country where it is located, and certified by the embassy or consulate of the people’s Republic of China in that country, or fulfilled Only after going through the certification procedures stipulated in the relevant treaties concluded between the people’s Republic of China and the host country can it have effect. That is to say, if one of the parties in the divorce proceedings concerning foreign affairs does not live in China and is unable to attend the proceedings in person in the people’s Court of our country, he may entrust a lawyer of our country to act as the entrusted agent for the litigation activities. However, he / she shall submit to the people’s court his / her written opinions on divorce and non divorce, as well as the ownership of child support and the division of property. The power of attorney submitted by the party residing in a foreign country shall be certified by the notary office of the country where it is located, by the Chinese embassy or consulate in that country, or directly by the Chinese embassy or consulate in that country, or after the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located are performed, it shall have legal effect.
A lawyer acting for a foreign party in a divorce case shall notarize the materials submitted by one of the foreign parties and hand them over to the entrusted agent of the domestic party. The entrusted agent may file a case on behalf of the client, appear in court to respond to the lawsuit, express his opinions, participate in the court debate, and receive the legal litigation documents on behalf of the client with his / her identity card or lawyer card (lawyer acting for him / her).
2. Foreign divorce filing materials
After the parties determine the court of jurisdiction, the first step is to prepare the materials needed for filing the case. So what materials should be submitted to the people’s court for divorce cases involving foreign affairs?
Materials to be submitted by the plaintiff: 1. ID card; 2. Marriage certificate; 3. Passport; (foreigners need to be notarized by the notary office of their own country and certified by the embassy and consulate of China in that country); 4. Residence certificate in China; 5. Civil indictment; 6. Power of attorney; (if entrusted to others for handling) 7. Written opinions on divorce; 8. Other relevant evidence materials, etc. If you are unable to participate in the trial as the plaintiff, the above-mentioned 4, 5 and 6 documents shall be notarized by the notary office of the country of residence, certified by the Chinese embassy or consulate in that country, or directly certified by the Chinese embassy or consulate in that country. If the above materials are in a foreign language, they must be accompanied by an accurate Chinese translation. You can entrust a translation company to translate them at your own expense.
The materials that the defendant needs to prepare in response to the lawsuit: 1. Identity certificate; 2. Marriage certificate; 3. Passport; (the foreign personnel need to be notarized by the domestic notary office and certified by the Chinese Embassy and consulate in the country); 4. Residence certificate in China; 5. Civil pleadings; 6. Power of attorney; (such as entrusted agent) 7. Written opinions on divorce; 8. Other relevant evidence materials, etc.