|
|
| 婚姻律师杂志>>原创论文>> Different
Kinds of Foreign Divorce Cases and The Way to Deal With Such Case |
Different Kinds of Foreign Divorce Cases
and The Way to Deal With Such Case |
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.
|
|
