A client recently consulted me about divorcing his Chinese wife and obtaining custody of their 3-year-old child. He claimed that his wife does not care for the child but believes she will fight for custody to prevent him from filing for divorce. Recognizing that his situation might be common, I am sharing his questions and my responses below (without disclosing any personal information, of course).
Q1. Can I file for divorce in China? We have been living in Shanghai since our marriage, and our marriage was registered in Shanghai. However, my wife is from Jiangxi (her household registration is in Jiangxi). Where can we file for divorce?
A1: You can file for divorce in China. According to Articles 21 and 22 of the Civil Procedure Law of the People's Republic of China, the jurisdiction for divorce cases can be:
1. The court where the defendant resides: This would be the court in Jiangxi, where your wife's household registration is located.
2. The court where the couple has lived together: If you and your wife have lived in Shanghai continuously for more than one year, you can also choose to file for divorce in a Shanghai court.
Therefore, you can choose to file for divorce in either Shanghai or Jiangxi. If you prefer to file in Shanghai, you will need to provide proof of residence (such as a rental contract or residence permit) to show that you have lived in Shanghai continuously for more than one year.
Related legal provisions:
Article 21 of Civil Procedure Law of the PRC: In the case of a civil lawsuit filed by a citizen, the People's Court at the location of the Defendant's domicile shall have jurisdiction; where the domicile and habitual residence of the Defendant are different, the People's Court at the location of habitual residence shall have jurisdiction.
Q2. In China, how can I file for divorce in my situation? What are the options?
A2: In China, there are two main ways to get divorced:
1. Divorce by Agreement:
* Both parties agree on divorce, property division, and child custody, and submit the necessary documents：ID cards, household registration books, marriage certificate, and a divorce agreement) to the marriage registration office.
* A 30-day cooling-off period is required. After this period, both parties must return to the office to finalize the divorce.
2. Divorce by Litigation:
* If no agreement can be reached, one party can file a divorce lawsuit in court.
* The court will first attempt mediation. If mediation fails, the case will proceed to trial, where the court will decide on divorce, property division, and child custody based on the evidence and legal provisions.
In your case, if your wife does not agree to the divorce, you will need to proceed with a divorce by litigation.
Q3. After the divorce, shall I need to pay alimony to my wife?
A3: According to Article 42 of the Marriage Law of the People's Republic of China and Article 1090 of the Civil Code of the People's Republic of China, after a divorce, if one party is in financial difficulty, the other party should provide appropriate financial assistance. Whether alimony is required and the amount depend on the following factors:
1. Your wife's living conditions:
If she has no income or is in financial difficulty after the divorce, the court may order you to pay alimony.
2. Your financial capacity:
The court will consider your income, assets, and ability to pay.
3. Duration of the marriage:
If the marriage lasted for a long time, the court may order alimony for a longer period.
In your case, since your wife has not been working after marriage, the court may order you to pay a certain amount of alimony based on her needs and your financial capacity. The specific amount and duration will be determined by the court based on the actual circumstances.
Related legal provisions:
Article 1090 of the Civil Code of the People's Republic of China: At the time of divorce, if one party is in financial difficulty, the other party who has the ability to provide support shall render appropriate assistance. The specific arrangements shall be agreed upon by both parties; if no agreement can be reached, the People's Court shall make a judgment.
Q4. Since our marriage, I have been working, while my wife has not. We currently have 300,000 RMB in savings. How will this money be divided?
A4: According to Article 17 of the Marriage Law of the People's Republic of China and Article 1062 of the Civil Code of the People's Republic of China, property acquired during the marriage (such as wages, savings, etc.) is considered joint property. Upon divorce, joint property is generally divided equally. Therefore, the 300,000 RMB deposit will be considered joint property, and the court will usually award half to each party.
However, the court will also consider the following factors when dividing property:
1. Contributions to the marriage: If you can prove that you contributed more to the family financially, the court may award you a larger share.
2. Fault in the marriage: If one party committed significant fault during the marriage (such as infidelity or domestic violence), the court may adjust the division to favor the innocent party.
In your case, the 300,000 RMB deposit should be divided equally in principle, but if you can provide evidence that you contributed more to the family financially, the court may adjust the division ratio.
Q5. How can I obtain custody of our child during the divorce? What factors will the judge consider?
A5: According to Article 36 of the Marriage Law of the People's Republic of China and Article 1084 of the Civil Code of the People's Republic of China, the court will prioritize the best interests of the child when deciding custody. Specific factors include:
1. Age of the Child:
* Children under 2 years old are usually awarded to the mother.
* For children over 2 years old, the court will decide based on the conditions of both parties.
* For children over 8 years old, the court will consider their wishes.
2. Financial Capacity of the Parents:
Stable income and living conditions are favorable for obtaining custody.
3. Parenting Ability:
Including time, energy, education level, and emotional bond with the child.
4. Living Environment of the Child:
The court will consider whether the child's current living environment is stable and conducive to their growth.
5. Other Factors:
Such as whether a parent misbehave (e.g., alcoholism, gambling).
In your case, you need to prove that you have better parenting conditions and that your wife does not care for the child. You can provide the following evidence:
* Proof of income, property ownership, etc., to show your financial stability.
* Evidence of your close relationship with the child (e.g., photos, videos).
* Proof of the living and educational conditions you provide for the child (e.g., school records, medical records).
Related legal provisions:
Article 1084 of the Civil Code of the People's Republic of China: The relationship between parents and children shall not be terminated due to the divorce of the parents. After divorce, regardless of whether the child is directly raised by the father or the mother, the child remains the child of both parents.
After divorce, both parents still retain the rights and obligations to raise, educate, and protect their children.
After divorce, children under the age of two shall, in principle, be directly raised by the mother. For children over the age of two, if the parents cannot reach an agreement on custody, the People's Court shall make a judgment based on the specific circumstances of both parties and in accordance with the principle of the best interests of the minor child. For children over the age of eight, their genuine wishes shall be respected.
In summary, whether you are seeking a divorce, dividing property, or fighting for child custody, you must prepare evidence that supports your case. The court will make a comprehensive judgment based on the legal provisions and the specific circumstances of your situation.
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