You can file for divorce with either a court in your country or a Chinese court.
1. File for divorce with a court in your country
In divorce proceedings, if the court in your country allows your wife not to appear in person or allows remote appearance by video and other means, you can consider filing for divorce with a court in your country.
Once you have the divorce judgment, you can apply to a Chinese court for recognition of such judgment. Upon recognition by the Chinese court, the divorce comes into effect in China.
After the judgment becomes effective in China, you can claim the distribution of community property in China based on the judgment.
2. File for divorce with a Chinese court
Even if you cannot be physically present in China, you can still file for divorce with a Chinese court.
In the case that you cannot personally file a lawsuit with a Chinese court and appear in a Chinese court, you need to appoint a Chinese lawyer to represent you in the divorce proceedings.
To this end, you need to prepare a series of documents and have them notarized and authenticated at the Chinese embassy/consulate(s) in your country. And then you should mail them to your Chinese lawyer for use in litigation.
In divorce proceedings, you should still appear in court as much as possible under Chinese law, even if you have a lawyer.
This is because a Chinese judge will only grant the divorce if he/she believes that mutual affection no longer exists between the two parties. In the absence of your appearance in court, the judge cannot determine whether mutual affection exists between you based on the lawyer’s words alone.
However, if you are truly unable to appear in court in China due to special reasons, you shall present your opinion in writing to the people’s court, to apply for exemption from appearing in court.
During the COVID-19 pandemic, many Chinese courts allow overseas parties to appear remotely via video and other means when they are unable to appear in divorce proceedings personally. You can also try to apply to the court for a remote appearance.
The Cross-border Family Matters 101 Series (‘CFM 101 Series’) provides an introduction to China-related cross-border family matters (marriage and succession), and covers the knowledge essential to cross-border family matter management.
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Contributors: Meng Yu 余萌