Jurisdictional Issues in Cross-Border Divorce Proceedings
In China, a foreign-related marriage may be dissolved either by agreement or by litigation. Pursuant to Art.131 and Art.142 of the Marriage Registration Regulations, however, only marriages originally registered within China are eligible for the administrative divorce-by-agreement procedure. Where a foreign-related marriage was registered outside China, it must be terminated through litigation and cannot be dissolved through administrative procedure.
On jurisdictional issues, Chinese law clearly specifies hierarchical jurisdiction over foreign-related divorce cases. Territorial jurisdiction, however, is clearly defined only where both spouses are Chinese nationals. Cases involving one or two foreign nationals lack explicit provisions, leading to divergent judicial practices. Moreover, as such cases often engage both Chinese and foreign court jurisdictions, cross-jurisdictional conflicts frequently arise.
Against this backdrop, this article examines the jurisdiction of Chinese courts in foreign-related divorce cases and the resulting cross-jurisdictional conflicts.
I. Hierarchical Jurisdiction
As a general rule, first-instance foreign-related divorce cases are under the jurisdiction of the Primary People’s Courts.3 However, Intermediate People’s Courts may exercise first-instance jurisdiction over major cases4—such as those involving substantial amounts5 in dispute, complex circumstances, or significant impact within their jurisdiction.
Furthermore, according to Article 5 of the Provisions of the Supreme People’s Court on the Procedure for the Recognition of Foreign Divorce Judgments by Chinese Citizens (2020 Revision, hereinafter to as the “CPR of Foreign Divorce Judgments”), applications by Chinese citizens for recognition of foreign divorce judgments fall under the jurisdiction of Intermediate People’s Courts.
II. Territorial Jurisdiction
1. Both Parties are Chinese Nationals
For divorce cases where both parties are Chinese nationals, Chinese law provides clear jurisdictional rules, as detailed in Table 1 below.
For divorced Chinese citizens both residing abroad, if the lawsuit is solely regarding the division of domestic property, the court at the location of the principal property (i.e., the place where the most valuable property among the assets requested for division is situated) shall have jurisdiction.12 This is a special type of territorial jurisdiction.
If the lawsuit is not limited to the division of domestic property but also involves matters such as child custody or child support within China, jurisdiction should be determined based on the principle of convenience for both parties.13 A reasonable jurisdictional connection shall be established among the plaintiff’s or defendant’s former domicile, the domicile or habitual residence of the dependent, or the location of the principal property.
2. One or Both Parties Are Non-Chinese Nationals
Art.23(1)14 of the CPL grants jurisdiction over personal status lawsuits against a non-resident defendant to the people’s court in the plaintiff’s domicile or habitual residence. (See Table 2 for case references.)
Beyond this provision, current Chinese law does not contain explicit rules for cases involving foreign parties. Consequently, judicial practice has seen varying interpretations by different courts. For instance：
(1)The Beijing High People’s Court asserts jurisdiction over divorce cases between foreigners if either party has a habitual residence in China.15
(2)The Shanghai High People’s Court maintains that Chinese courts have jurisdiction if either party is a Chinese national or the marriage was registered in China. Where both parties are foreign nationals and were married abroad, Chinese courts will only accept the case if both parties voluntarily submit to the jurisdiction and it is indeed necessary for the Chinese court to handle the matter.16
Overall Observation: In cases involving foreign and Chinese (including Hong Kong/Macao/Taiwan) parties, courts determine jurisdiction based on close connections such as nationality, domicile, habitual residence, or place of marriage, pursuant to Art. 23 of the CPL and its judicial interpretation. Where no such connection exists with China, the case will not be accepted.
III. Jurisdictional Conflicts in Cross-Border Divorce Cases
1. Lawsuits Filed in China After Foreign Judgment Takes Effect
China’s legal framework addresses this as follows:
(1) Pursuant to Art. 20 of the CPR of Foreign Divorce Judgments, parties may initiate divorce proceedings in Chinese courts even if their marriage has been adjudicated by a foreign court, provided no application for recognition of said judgment has been filed with a Chinese court.
(2) According to Art. 18 of the CPR of Foreign Divorce Judgments and Art. 531(1) of the Judicial Interpretation of the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the “CPL”):
① Once a divorce case is accepted by a Chinese court, neither party may apply for recognition of a foreign divorce judgment during pending proceedings.
② Once a judgment is rendered by a Chinese court, foreign judgments on the same case will not be recognized or enforced after China's judgment. Exceptions apply only where permitted by international treaties jointly concluded or acceded to by both countries.
(3) Pursuant to Art. 19 of the CPR of Foreign Divorce Judgments and Art. 531(2) of the Judicial Interpretation of the CPL: Chinese courts will not accept duplicate lawsuits when a foreign judgment on the same dispute has already been recognized in China.
2. No Prior Effective Judgment Exists, and Both Parties Have Filed Lawsuits in Both Chinese and Foreign Courts
For this scenario, reference may be made to several key principles for resolving jurisdictional conflicts in international civil litigation:
(1) Choice of Court Agreements17 – If the parties have mutually agreed in writing to a specific forum, that agreement shall be respected.
(2) Submission by Appearance18 – If the defendant participates in proceedings on the merits without challenging jurisdiction in a timely manner, the court is deemed to have jurisdiction. This is also reflected in Art. 5(1)(f) of the 2019 Hague Judgments Convention.19
(3) First-in-Time Rule (lis alibi pendens)20 – Where parallel proceedings exist, the court later seised should generally defer to the court first seised.
(4) Forum Non Conveniens21 – A court with jurisdiction may decline to exercise it if another, more appropriate forum is available, thereby ensuring efficiency and fairness.
The newly amended CPL (2023 Version) provides more detailed and stringent criteria for the application of the forum non conveniens doctrine. It explicitly requires that the defendant raises an objection to jurisdiction as a precondition for its application. Additionally, both “the trial of the case by the people’s court is clearly inconvenient” and “the parties’ participation in the proceedings is clearly inconvenient” is required to be satisfied.
Furthermore, the article stipulates that even if a Chinese court dismisses a case based on the forum non conveniens doctrine, if circumstances arise such as the foreign court refusing to exercise jurisdiction, failing to take necessary steps to adjudicate the case, or failing to conclude the case within a reasonable period, the parties may still request the Chinese court to exercise jurisdiction, and the Chinese court shall accept the case.
Due to these cumulative requirements, the doctrine is rarely applied in divorce cases. For details, please refer to Table 3.
IV. Summary
Under current Chinese law, the jurisdictional framework for foreign-related divorce litigation is structured as follows: In terms of hierarchical jurisdiction, such cases fall primarily under the adjudication of primary courts. As for territorial jurisdiction, while clear rules exist for cases involving Chinese nationals only, those with foreign parties are determined by reference to the CPL and its judicial interpretation. In such instances, courts take into account multiple connecting factors, including nationality, domicile, habitual residence, and the place of marriage. To resolve jurisdictional conflicts, internationally recognized principles are applied, such as party autonomy, jurisdiction by submission, the first-in-time rule, and the doctrine of forum non conveniens. Together, these elements form a comprehensive and adaptable mechanism for allocating jurisdiction in cross-border divorce disputes.
Notes：
1. Marriage Registration Regulations, Art.13: ……Where a Chinese citizen and a foreigner mutually agree to divorce within the mainland of China, or where a mainland resident and a resident of Hong Kong, Macao, or Taiwan, or an overseas Chinese mutually agree to divorce within the mainland of China, both the man and the woman shall execute a written divorce agreement and apply jointly in person to the marriage registration authority specified in Paragraph 2, Article 2 of these Regulations for divorce registration.
2. Marriage Registration Regulations, Art.14: The marriage registration authority shall not accept a divorce registration application under any of the following circumstances: (1) The parties have not reached a divorce agreement; (2) Either party is a person without or with limited capacity for civil conduct; or (3) The marriage of the parties was not registered in the mainland of China.
3. See Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the “CPL”), Art.18: The primary people’s courts shall have jurisdiction as courts of first instance over civil cases, unless otherwise provided by this Law.
4. See CPL, Art.19: Intermediate people’s courts shall have jurisdiction as courts of first instance over the following civil cases: (1) major cases involving foreign elements; (2) cases that have a significant impact within their jurisdiction; (3) cases determined by the Supreme People's Court to be under the jurisdiction of intermediate people's courts.
5. See Judicial Interpretation of the CPL, Art.1: The term “major cases involving foreign elements” as referred to in item (1) of the CPL Art.19 includes cases involving a large amount in dispute, cases with complex circumstances, or cases where one party has a large number of participants, among others that have a significant impact.
6. Judicial Interpretation of the CPL, Art.13: Where overseas Chinese who married within China and have settled abroad, if the court of the country of settlement refuses to accept a divorce lawsuit on the grounds that it must be under the jurisdiction of the court of the place where the marriage was concluded, and the parties file a divorce lawsuit with a people’s court, the case shall be under the jurisdiction of the people’s court of the place where the marriage was concluded or of the last place of residence of either party within China.
7. In practice, most courts strictly adhere to statutory provisions. However, divergent views exist. As noted in the Practical Q&A on Civil Adjudication (China Legal Publishing House, 1st ed. July 2021, pp. 120-121), a publication compiled by the First Civil Division of the Supreme People’s Court: “Since the law does not explicitly exclude the right of overseas Chinese couples who married in China and settled abroad to file for divorce in Chinese courts, the people’s courts should not refuse to accept such cases, nor should they require the parties to provide evidence that their divorce case is not accepted by the courts of the country of settlement as a prerequisite for accepting the case.”
8. In this table, the definition of “Overseas Chinese” is crucial for determining the jurisdiction. According to the Art.1 of the “Regulations on Defining the Status of Overseas Chinese, Foreign Nationals of Chinese Origin, Returned Overseas Chinese, and Relatives of Overseas Chinese”, “Overseas Chinese” refers to Chinese citizens who have settled abroad. (1) “Settled” means that a Chinese citizen has obtained the right of long-term or permanent residence in the country of residence and has resided there continuously for two years, with a cumulative residence of no less than 18 months within those two years. (2) If a Chinese citizen has not obtained the right of long-term or permanent residence in the country of residence but has obtained a legal residency qualification for five consecutive years (including five years) or more, and has resided in the country of residence for a cumulative period of no less than 30 months within those five years, they shall be regarded as Overseas Chinese. (3) Chinese citizens studying abroad (including publicly funded or self-funded) during their period of study, or those working abroad on official business (including dispatched laborers), are not regarded as Overseas Chinese.
9. Judicial Interpretation of the CPL, Art.14: Where overseas Chinese who married within China and have settled abroad, if the court of the country of settlement refuses to accept a divorce lawsuit on the grounds that it must be under the jurisdiction of the court of the place where the marriage was concluded, and the parties file a divorce lawsuit with a people’s court, the case shall be under the jurisdiction of the people’s court of the place where the marriage was concluded or of the last place of residence of either party within China.
10. Judicial Interpretation of the CPL, Art.15: Where one party to a divorce is a Chinese citizen residing abroad and the other is a Chinese citizen residing within China, the people’s court at the place where the domestic party has his domicile shall have jurisdiction over the case, regardless of which party initiates the divorce proceedings before the people’s court. If the party residing abroad files a divorce suit with a local court and the domestic party also initiates divorce proceedings before a people’s court in China, the people’s court that accepts the case shall have jurisdiction.
11. Judicial Interpretation of the CPL, Art.16: Where both parties are Chinese citizens residing abroad but have not settled there, and one party files a divorce lawsuit with a people’s court, the case shall be under the jurisdiction of the people’s court at the original domicile of the plaintiff or the defendant.
12. Judicial Interpretation of the CPL, Art.17:Where divorced Chinese citizens who have both settled abroad file a lawsuit solely concerning the division of property within China, the case shall be under the jurisdiction of the people's court at the location of the principal property.
13. Du Wanhua, A Practical Guide to the Judicial Interpretations of the CPL of the Supreme People’s Court, China Legal Publishing House, March 2015, p. 22.
14. CPL, Art.23(1): Where an action concerning personal status is brought against a person not residing within the territory of the People’s Republic of China, the people’s court at the place of the plaintiff’s domicile shall have jurisdiction. If the plaintiff’s domicile is different from his habitual residence, the people’s court at the place of his habitual residence shall have jurisdiction.
15. See the Reference Opinions of the First Civil Division of the Beijing High People’s Court on Several Difficult Issues in the Trial of Marriage Dispute Cases, Art.49: Where a divorce case involves foreigners who have a habitual residence in China, and one or both parties are foreigners with a habitual residence within the territory of China and file for divorce in a Chinese court, the case shall have jurisdiction.
16. See Notice of the Shanghai High People’s Court on Issuing the “A&Q on Case Filing”， Hu Gao Fa Li [2011] No. 1.
17. CPL, Art.277: Where parties to a foreign-related civil dispute have agreed in writing to choose the jurisdiction of a people’s court, the people’s court may have jurisdiction.
18. CPL, Art. 278: Where a party fails to raise an objection to jurisdiction and responds to the action by making a statement or filing a counterclaim, the people’s court shall be deemed to have jurisdiction.
19. Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Concluded 2 July 2019), Art. 5(1)(f). For details, please refer to: https://assets.hcch.net/docs/806e290e-bbd8-413d-b15e-8e3e1bf1496d.pdf, Latest retrieval date: December 3, 2025.
20. CPL, Art. 281: After a People’s Court accepts a case pursuant to the preceding article, the court may order a stay of the proceedings upon the party’s written request on the ground that a foreign court has entertained the case earlier than the People’s Court, unless under any of the following circumstances: ……
21. CPL, Art. 282: In foreign-related civil cases accepted by a People’s Court, where the defendant raises an objection to jurisdiction and the following circumstances exist simultaneously, the People’s Court may rule to dismiss the lawsuit and inform the plaintiff to bring the action before a more convenient foreign court: (1) The basic facts of the dispute did not occur within the territory of the People’s Republic of China, and both the trial of the case by the People’s Court and the participation of the parties in the proceedings are manifestly inconvenient; (2) There is no agreement between the parties selecting the People’s Court for jurisdiction; (3) The case does not fall under the exclusive jurisdiction of the People’s Court; (4) The case does not involve the sovereignty, security, or social and public interests of the People’s Republic of China; (5) It is more convenient for a foreign court to hear the case.
After a ruling is issued to dismiss the lawsuit, if the foreign court refuses to exercise jurisdiction over the dispute, or fails to take necessary measures to hear the case, or fails to conclude the case within a reasonable time, and the party brings the action before the People’s Court again, the People’s Court shall accept the case.
Scan code and share
Search
Research
-
02-172020
Answers to the labor issues of enterprises during the prevention and controlling period of New Coronavirus Pneumonia(1)
Regarding the labor issues concerned by enterprises during the prevention and controlling period of New Coronavirus Pneumonia (“NCP”), Attorney Ms. Yuling Li and her team analyze the following legal issues for the enterprises’ reference. -
06-282019
Best Time Ever: Foreign Investment of ABS in PRC
Back in 2009, it was utterly difficult for any Chinese financiers to even think of issuing large-scale asset-backed securities (ABS) -
08-012019
Ten Q&A · Issues related to the compliance governance of Chinese personal information and data security from the perspective of regulatory development(2)
Recently, the report that Facebook has reached an agreement with the Federal Trade Commission over privacy violations which resulted in a $5 billion fine has got a lot of attention. On July 10th, the EU Data Protection Committee reported that there were conflicts between the US’s Clarifying Lawful Overseas Use of Data Act (CLOUD Act) and the EU's General Data Protection Regulations (GDPR) on the legal system of personal information protection, and it also indicated the escalating conflict between countries/regions over the right of data supervision. -
05-142019
Cookies Walls and scrolling web pages constitute
The European Data Protection Board (“EDPB”) has adopted on 4 May 2020 their latest Guidelines 05/2020 (the “Updated Guidelines”) on consent under the EU Regulation 2016/679 (“GDPR”). -
07-302019
Ten Q&A · Issues related to the compliance governance of Chinese personal information and data security from the perspective of regulatory development(1)
Recently, the report that Facebook has reached an agreement with the Federal Trade Commission over privacy violations which resulted in a $5 billion fine has got a lot of attention. On July 10th, the EU Data Protection Committee reported that there were conflicts between the US’s Clarifying Lawful Overseas Use of Data Act (CLOUD Act) and the EU's General Data Protection Regulations (GDPR) on the legal system of personal information protection, and it also indicated the escalating conflict between countries/regions over the right of data supervision.
沪公网安备 31011502009353号