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| Different Kinds of Foreign Divorce Cases |
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| 日期：2005-09-17 新闻来源：本站 作者：: 编辑： 新闻阅读次数： |
Lawyer Jia Mingjun
With the fast internationalization of Shanghai city, the number of the divorce cases in Shanghai has been gone up year after year. The statistical result of Shanghai civil administration office shows there are more than 10 international couples getting married in Shanghai everyday. Meanwhile, the foreign divorce case has also increased with a high speed. From January to May this year, 40% of the cases dealt by the www.iamlawyer.com are the foreign cases and the people engaged in such cases come from Japan, USA, German, Holland, Singapore, Australia, Canada, Eire Ireland, Hong Kong, Macao, Taiwan and other countries and areas. The foreign cases are complex because of the members in such cases coming from different countries; the various of the applicable laws and the conflict standard; the different procedure of the notarization, authentication and the applying for the recognition and enforcement of foreign judgments; the obstruction of the language. We will compare and discuss the familiar foreign divorce cases and the way to deal with such cases with the friends here and hope these will be helpful.
I. Both parties in the marriage have the Chinese nationality, the marriage was registered in China but one party who stays outside China can’t go back the hometown to deal with the divorce matters:
According to our country’s law, if one party can’t go back China to finish the divorce registration procedure, such divorce can only been settled by the court other than applying to the civil administration office.
A. Both parties can come to an agreement
i. The party outside China appoints his domestic friend or lawyer to be his attorney to attend the litigation. He/she has to write a power of attorney with fixed format, opinion on divorce (the format can be given by the embassy, consulate of our country and our website www.iamlaweyr.com). The power of attorney and the opinion should be authenticated by the embassy or the consulate of our country. The authentication fee varies from different place but it usually costs little. In Japan it will take 3000 yen and in America it will be 20 dollars.
ii. Meanwhile, the party in China brings the civil suit to the People’s Court in his/her place. It is better to write clearly in the pleading that both parties have reached the agreement on the divorce problem so that the court can hear the case earlier and this case can be solved fast and quick.
iii. The plaintiff and the attorney of the defendant will compass a conciliation statement (judgment) at the first time the court hears the case. The conciliation statement becomes effective on the day the case is heard and the parties can get written one in one week.
B. Both parties cannot come to an agreement
i. The party in China takes the divorce case to the People’s court. This party should offer the marriage certification, the ID card of the plaintiff, the address outside China or the passport of the defendant and other related evidence.
ii. After the court put the case on record, the judge will ask the plaintiff whether both parties can come to an agreement. If both parties can’t meet their minds or the defendant can’t be found, the court will send the litigation documents to the Ministry of Foreign Affairs and these documents will be serviced by diplomatic way. Thus, two circs may be happen:
First, the defendant gives his/her reply after receiving the summons and the court chooses the day to hear the case and makes the judgment. Or
The second, the defendant still can’t be found after three month from the court serve the summons to him. The court will sever the documents by public for another 6 months and after that the court will make a judgment by default.
If the court makes the judgment by default, such judgment only deals with the personal relationship but the court won’t dispose the property.
II. One party is a Chinese citizen and the other party is a foreigner, the marriage is registered in China.
A. Both parties can come to an agreement
i. If the party outside China can come to China, they can register the divorce in the foreign marriage administrative office.
ii. If the party outside China cannot come to China, the party in China can send the divorce suit to the People’s Court in his/her place. The procedure is the same as above.
B. Both parties cannot come to an agreement
i. The party in China sends the divorce suit to the court with marriage certification, notarization, and the plaintiff’s ID card, the defendant’s personal information (such as passport, the application table filled when making the marriage registration) and other materials as evidence.
ii. The court will choose a certain day to hear the case after it check and put the case on record. The procedure is the same as above.
When receiving the judgment of the court, the attorney should check the foreigner party’s name carefully to find if there is any spelling mistake. I acted as the attorney in a German divorce case and he foreigner party’s name is MARKRO, but the clerk wrote it as MARRKO. It took much time to change the judgment.
C. One party is Chinese citizen and the other is foreign, their marriage is registered abroad.
i. First of all, the marriage certification should be notarized and authenticated before send the case to the court in China. The key point to deal with such case is in the point of notarization and authentication. If the foreign lawyers are appointed to do the notarization and authentication, their fees are very expensive, especially the lawyers in England, USA and Canada. The lawyer fee is calculated by hour and it is probably much higher than the lawyer fee dealing the whole case in China. We contacted a lawyer in America before to do the notarization and he asked $2000 as he would work for 4 hours. In some other countries, such as Eire Ireland, the lawyer fee is very low, sometimes it is cheaper than a EMS and the notarization is very fast.
The marriage certification coming from Hong Kong, Taiwan, Macao should also be notarized and authenticated. When Hon Kong is concerned, the marriage certification there shall be investigated and verified by the Hong Kong lawyers appointed by the judiciary and then the lawyers will work out a notarization. It can be used only after the notarization with the transfer stamp of China law Hong Kong Service Company. We have nearly contact with such lawyer in Hong Kong so the related fee is very law and the total fee (including the investigation and stamp fee) is less than 3000 Hong Kong Dollar.
iii. Send the marriage certification and other documents to the court. If both parties agree to divorce, the case will be closed in a month; if one party doesn’t agree or can’t be find, the longest litigation time will be one and a half years.
IV. Both parties are foreigners and the marriage is also registered abroad, one party has a domicile in China
With the growth of the foreigners in Shanghai, it is common occurrence that both parties are foreigners want to divorce in Shanghai. All the courts in Shanghai begin to deal with such cases. It will meet some problems when such cases are brought to the court because of the judges’ different opinion. There are different ways to do such cases in different court. We have done such cases in Ming Hang, Putuo, Xuhui district. The court will accept the case which both parties can reach the agreement in and the court will make a conciliation statement. If both parties can’t reach the agreement, it will be done case by case.
Anyway, when a professional marriage lawyer does a divorce case, he should consider:
1. Choose the jurisdiction court for the best right of the client. It requires the lawyer conducting different countries’ law.
2. How to do the notarization and authentication. It is better to have a cooperate abroad to save the time and money for the client.
3. Good communication ability with foreign language to meet the needs of the job. As the clients of the foreign divorce cases come from different countries, person with ability in the foreign language is necessary for a professional marriage lawyer group. Our group has such person come from England and Japan and we can do the legal documents in Chinese, Japanese and English.
4. Get well understood of the life custom and thinking fashion in different countries. We should pay attention to the clients’ custom and thinking fashion when negotiation.
It needs practice and summarization to get abundant experience. We show our experience above for you to reference and hope a development and advancement of the adjudgment of the foreign divorce cases in our country.
-----from www.iamlawyer.com
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