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How to Divorce by Agreement Concerning Foreign Affairs According to the Law

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How to Divorce by Agreement Concerning Foreign Affairs According to the Law


        

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  • 2024-06-23 16:00:47

    Article 147 of the General Principles of the Civil Law of China stipulates that when citizens of the People's Republic of China marry foreigners, the law of the place where the marriage was concluded shall apply. For divorce, different countries in the world have different conflict norms in determining the applicable law of divorce cases. When a Chinese citizen and a foreigner divorce in China, the law stipulates that the plaintiff must file a lawsuit in the people's court with jurisdiction, and the parties cannot register their divorce through the administrative department.
    When applying laws to foreign-related marriage and family relations, it is necessary to resolve the conflict of marriage laws of two or more countries. According to the General Principles of the Civil Law and the relevant judicial interpretations of the Supreme People's Court, the principles of legal application of foreign-related marriage and family relations mainly include:
    1. Marriage between Chinese citizens and foreigners shall be governed by the laws of the place where the marriage was concluded. That is, the law of the place of marriage shall be the applicable law for foreign-related marriage. Including the substantive and formal elements of marriage, the laws of the country (or region) where the marriage is conducted shall apply. Therefore, the law of the place where the marriage was concluded is also applicable to determine whether the marriage is valid.
    2. Divorce between Chinese citizens and foreigners shall be governed by the law of the place where the court that accepts the case is located. That is to say, the law of the place of court shall be the applicable law for foreign-related divorce. Both the substantive and formal elements of divorce are applicable to the laws of the country (or region) where the court accepting the divorce case is located. The judicial interpretation of the Supreme People's Court of China clearly stipulates that the laws of our country shall apply to foreign-related divorce cases accepted by our courts, divorce and property division caused by divorce.
    3. Maintenance shall be governed by the laws of the country with the closest relationship with the dependant. The upbringing here includes the upbringing, compensation and support stipulated in the Marriage Law of China. The judicial interpretation of the Supreme People's Court points out that the law of the country with close ties to the members of the dependant shall apply to the maintenance of parents and children, the maintenance of husband and wife, and the maintenance of other persons with maintenance relations. The nationality and domicile of the dependant and the dependant, as well as the location of the property supporting the dependant, can be regarded as having the closest relationship with the dependant.
    4. The establishment, change and termination of guardianship shall be governed by the domestic law of the ward. However, if the ward has domicile in China, the laws of China shall apply.
    5. The application of foreign laws or international practices shall not violate the social and public interests of the People's Republic of China. This principle is also called the "public order reservation" principle. According to this principle, marriage should be prohibited by laws and regulations, and Chinese laws should still be applied if it does not have the effect of applying foreign laws.

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