Prenuptial Agreement in China

Under Chinese Marriage Law, prenuptial property of the wife or the husband shall be the personal property of that party. However, during the term of marriage life, such prenuptial property may be used or consumed by the couple and when it comes to divorce, it becomes difficult to recognize such property and dispute may arise between the couple.

What is Notary for Prenuptial Agreement?

The content of Prenuptial Agreement mainly includes:-

1) The scope of prenuptial property of each party;
2) The scope of personal debt;
3) Other issues.

Notary for Prenuptial Agreement means the Notary Public Office examines the prenuptial agreement concluded by both parties and witness the signing.

When the notary can be happened?

Usually, the notary can be happened in the following situations:-

1) Both parties reach the prenuptial agreement before they get married and have the agreement notarized before the Notary Public Office;
2) After the marriage, both the wife and the husband reach agreement on their respective prenuptial property and have the agreement notarized before the Notary Public Office.

Such notary for prenuptial agreement is becoming popular in China in recent years. In these days, the divorce rate is much higher than before and without prenuptial agreement, dispute on property division can easily arise between the couple. I had many cases involving husband and wife fight fiercely in the court for the property. And from my experience, if one party is unable to provide evidence proving the disputed property is his/her prenuptial property, the court will easily regard such property as common property of the couple and have it divided half and half between the wife and the husband.

However, if there is a prenuptial agreement, the dispute on property can be dramatically reduced. The court can directly decide the belonging of property according to such agreement.

What is the criteria for divorce in a divorce lawsuit?

In China, when people wants to get a divorce but fails to do that by reaching a divorce agreement with the other party, he/she may have to do it by filing a divorce lawsuit. So it is important to learn the marriage law with regard to criteria for the divorce before he/she decides to file a lawsuit.

From Chinese perspective, the marriage is based on emotion. It is hard to describe but most people know that shall be a kind of description of love. Therefore, if emotion does not exist, there shall be the end of marriage.

Under the Chinese marriage law, if emotion does not exist, divorce can be granted. But before that, the court should carry out mediation between the parties and see if divorce is inevitable.

Although in most divorce cases, the dispute will focus on the property division and child support, there are cases in which one party says there is no emotion, but the other party insists emotion still exists. Under such circumstances, from my experience, the court will not grant the divorce if there is no other evidence to support the plaintiff’s claim.

Therefore, the lawsuit can be hard if the defendant insists emotion still exists and refuses the divorce. The plaintiff may have to file the lawsuit again after 6 months and then the possibility of divorce granted by the court will be much higher.

Of course, the plaintiff can also provide evidence in relation to circumstances as listed by the marriage law to support his/her claim of divorce, if such evidence can be confirmed and accepted by the court, the court can grant the divorce even the defendant refuses to divorce. Such circumstances include:-

1) bigamy or, cohabitation with any third party;
2) family violence or, maltreatment and desertion of family member;
3) bad habits of gamble or drug addiction which cannot be corrected despite repeated admonition;
4) separation due to bad emotion, which lasts two years.


Please feel free to contact me if you have any question. Email address: erexcxl@yahoo.com.cn

Premarital/prenuptial agreement

Agreements entered into prior to the date of marriage are premarital or prenuptial agreements. Generally speaking and subject to some notable exceptions, under current Chinese marriage law, parties who intend to marry are free to define their respective property rights. In the absence of a premarital agreement, marriage and post-dissolution rights and obligations are determined by the marriage law.

The motivation of the person seeking a premarital agreement usually falls into one of two categories:

(1) the spouse with the assets wants his or her separate property assets protected in the event of a divorce; or

(2) the spouse who holds few assets is giving up a career to stay home and raise a family and, thus, wants to be financially compensated for the loss of his or her career. The law of premarital agreements is very technical in some respects and unless carefully crafted, they may not be enforceable. Most premarital agreements are drafted by qualified family lawyers in China.

How to have the divorce decree made by foreign court recognized in China?

A. Applicant

1. The Chinese who is a party of the divorce decree made by foreign court can apply the Intermediate People’s Court for recognition of such divorce decree;

2. The foreigner who is a party of the divorce decree made by foreign court can apply the Chinese court for recognition of such divorce decree. However, his/her ex-spouse shall be a Chinese.

B. Documents required to be submitted.

1. The applicant shall provide a written application letter along with the original of divorce decree made by foreign court and its Chinese translation;

2. If the divorce decree does not indicate it has been effective or does not include the effective date, the applicant shall provide relevant documents to prove such decree has gone into effect;

3. If the applicant is the plaintiff in such divorce decree, he/she shall provide the court summons which indicates the defendant has been duly summoned by the court;

4. The required documents in 3 and 4 shall be notarized and legalized accordingly. Also their Chinese translations are necessary;

5. If the applicant is the defendant in such divorce decree who lives in China and it is difficult for him/her to provide required documents in 3 and 4, the decree can be deemed to be true and effective if he/she can provide Notice for hearing or court summons issued by foreign court;

6. The applicant shall submit his/her HUKOU book (for the Chinese);

7. The applicant shall submit the original marriage certificate;

8. If the applicant cannot be present in the court in person, for Chinese, he/she may provide POA to the court; for foreigner, he/she shall retain Chinese lawyer to be his/her representative.

如何在中国申请承认外国法院离婚判决

一、申请人

1、外国法院作出离婚判决中的中国公民，可以向其住所地中级人民法院申请承认该外国法院的离婚判决。

2、外国法院作出的离婚判决中的外国公民也可以向人民法院申请承认该外国法院的离婚判决，但其离婚的原配偶必须是中国公民。

二、申请立案须递交的材料

1、向人民法院申请承认外国法院的离婚判决，申请人应提出书面申请书，并须附有外国法院离婚判决书正本及经证明无误的中文译本。否则，不予受理。

2、申请书应记明以下事项：
1）申请人姓名、性别、年龄、工作单位和住址、联系电话、邮政编码。
2）判决由何国法院作出，判决结果、时间。
3）受传唤及应诉的情况。
4）申请理由及请求。
5）其他需要说明的情况。

3、对于外国法院离婚判决书没有指明已生效或生效时间的，申请人应提交作出判决的法院出具的判决已生效的证明文件。

4、外国法院作出离婚判决的原告为申请人的，应提交作出判决的外国法院已合法传唤被告出庭的有关证明文件。

5、上述第3、第4点要求提供的证明文件，应经外国公证部门公证和我国驻该国使、领馆认证。同时申请人应提供经证明无误的中文译本。

6、居住在我国境内的外国法院离婚判决的被告为申请人，提交第3、第4点所要求的证明文件和公证、认证有困难的，如能提交外国法院的应诉通知或出庭传票的，可推定外国法院离婚判决书为真实和已经生效。

7、申请人应提交其户籍证明，申请人的住所地与经常居住地不一致的，应提交其在经常居住地的户籍证明，申请人不在国内的，应提供其出国前的户籍证明。

8、申请人应提供其原婚姻登记证明。

9、如申请人不能亲自到庭，国内居民可提交由其本人签名的授权委托书；境外人士可委托中华人民共和国律师或国内亲友为诉讼代理人，其授权委托书须经所在国公证机关公证，我国驻该国使、领馆认证，才具有效力。

Child Support and Maintenance in case of Divorce

There are serveral principles for dealing with child support and maitenance in case of divorce:

a) For child under the age of two, the child shall follow the mother otherwise agreed by the couple;

b) As for the maintenance fee, if the husband or the wife has regular income, it shall be 20%-30% of the monthly income for each month. If there is one more children, the percentage can be increased up to 50%. If the husband or the wife has no regular income, the yearly maintenance fee shall be 20%-30% of the total yearly income or the average yearly income in the industry.

c) Usually, the maintenance fee for child shall be paid until the child grows to age of 18.

Can two foreigners be allowed to get married in China?

Two foreigners can be allowed to get married in China if the following conditions can be met:-

a) Required documents for marriage can be provided (see my another blog article);

b) The parties shall provide documents illustrating oversea marriage outside of their countries can be effective;

c) The marriage registration shall be handled at the place where they work or live in China.