By Shanghai Xuhui Court, translated in July 29, 2022

Chinese Title of this article is "涉外婚姻（婚姻登记与离婚）的十问十答".

1 民政部门是否受理涉外婚姻结婚或离婚登记？

Does the Civil Affairs Department accept the registration of transnational marriage or divorce?

登记结婚方面，我国《婚姻登记条例》规定，中国公民同外国人,内地居民同香港居民、澳门居民、台湾地区居民、华侨办理婚姻登记的机关是省、自治区、直辖市人民政府民政部门或者省、自治区、直辖市人民政府民政部门确定的机关。比如，在上海，双方需要到上海市民政局办理涉外婚姻登记。

但并非所有的涉外婚姻均能通过中国民政局系统办理。要想在中国民政系统办理离婚登记，首先，双方系在中国民政局登记结婚（《婚姻登记条例》规定，其结婚登记不是在中国内地办理的，婚姻登记机关不予受理离婚登记）。其次，一方为中国公民（《婚姻登记条例》规定，男女双方应当共同到内地居民常住户口所在地的婚姻登记机关办理离婚登记）。再次，双方对离婚、子女抚养、财产分割等达成合意。

这就产生了一个有趣的现象，即两长期生活在中国的外籍人士可以在中国登记结婚，但不能在中国登记离婚。

参考依据为民政部关于贯彻执行《婚姻登记条例》若干问题的意见：

八、关于双方均非内地居民的结婚登记问题

双方均为外国人，要求在内地办理结婚登记的，如果当事人能够出具《婚姻登记条例》规定的相应证件和证明材料以及当事人本国承认其居民在国外办理结婚登记效力的证明，当事人工作或生活所在地具有办理涉外婚姻登记权限的登记机关应予受理。

In terms of marriage registration, China's "marriage registration regulations" stipulates that the civil affairs departments of the people's governments of provinces, autonomous regions, and municipalities directly under the central government or the civil affairs departments of the people's governments of provinces, autonomous regions, and municipalities directly under the central government determine the authorities for marriage registration between Chinese citizens and foreigners, mainland residents and Hong Kong residents, Macao residents, Taiwan residents, and overseas Chinese. For example, in Shanghai, both parties need to go to the Shanghai Civil Affairs Bureau to register foreign-related marriages.

However, not all foreign-related marriages can be handled through the system of the China Civil Affairs Bureau. In order to register for divorce in the civil affairs system of China, first of all, both parties are registered for marriage in the Civil Affairs Bureau of China (the marriage registration ordinance stipulates that their marriage registration is not handled in mainland China, and the marriage registration authority will not accept divorce registration). Secondly, one party is a Chinese citizen (the marriage registration ordinance stipulates that both men and women should jointly go to the marriage registration authority where the permanent residence of mainland residents is located to handle divorce registration). Thirdly, both parties reached an agreement on divorce, child rearing, property division, etc.

This has produced an interesting phenomenon, that is, two foreigners who have lived in China for a long time can register marriage in China, but can't register divorce in China.

The reference basis is the opinions of the Ministry of Civil Affairs on Several Issues concerning the implementation of the marriage registration regulations:

VIII、 On the marriage registration of both parties who are not mainland residents

If both parties are foreigners and require marriage registration in the mainland, if the party can produce the corresponding certificates and supporting materials stipulated in the marriage registration regulations and the certificate that the party's home country recognizes the effectiveness of its residents' marriage registration abroad, the registration authority with the authority to handle foreign-related marriage registration in the place where the party works or lives shall accept it.

2 一方为中国国籍，另一方为外国国籍。双方在中国登记结婚（或在国外登记结婚），中国法院是否受理其中一方提起的离婚诉讼？

双方均为中国国籍，但双方是在国外登记结婚，中国法院是否受理其中一方提起的离婚诉讼？

双方均为外国国籍，但双方是在中国登记结婚，中国法院是否受理其中一方提起的离婚诉讼？

One party is of Chinese nationality and the other party is of foreign nationality. Whether the Chinese court accepts the divorce lawsuit filed by one of the two parties who have registered their marriage in China (or abroad)?

Both parties are Chinese nationals, but both parties are registered for marriage abroad. Does the Chinese court accept the divorce lawsuit filed by one of them?

Both parties are foreign nationals, but both parties are registered for marriage in China. Does the Chinese court accept the divorce lawsuit filed by one of them?

均受理。只要是在中国登记结婚或一方为中国公民，中国法院均受理相应的离婚诉讼。参考《民事诉讼法司法解释》部分规定：

在国内结婚并定居国外的华侨，如定居国法院以离婚诉讼须由婚姻缔结地法院管辖为由不予受理，当事人向人民法院提出离婚诉讼的，由婚姻缔结地或者一方在国内的最后居住地人民法院管辖。

在国外结婚并定居国外的华侨，如定居国法院以离婚诉讼须由国籍所属国法院管辖为由不予受理，当事人向人民法院提出离婚诉讼的，由一方原住所地或者在国内的最后居住地人民法院管辖。

中国公民一方居住在国外，一方居住在国内，不论哪一方向人民法院提起离婚诉讼，国内一方住所地人民法院都有权管辖。国外一方在居住国法院起诉，国内一方向人民法院起诉的，受诉人民法院有权管辖。

中国公民双方在国外但未定居，一方向人民法院起诉离婚的，应由原告或者被告原住所地人民法院管辖。

All are accepted. As long as the marriage is registered in China or one party is a Chinese citizen, the Chinese courts will accept the corresponding divorce proceedings. Refer to the provisions of the judicial interpretation of the Civil Procedure Law:

For overseas Chinese who marry in China and settle abroad, if the court of the country of residence refuses to accept the divorce proceedings on the ground that they must be under the jurisdiction of the court of the place where the marriage is concluded, and the parties file divorce proceedings with the people's court, they shall be under the jurisdiction of the people's Court of the place where the marriage is concluded or the last residence of one party in China.

For overseas Chinese who marry and settle abroad, if the court of the country of residence refuses to accept the divorce proceedings on the ground that they must be under the jurisdiction of the court of the country of nationality, and the party files a divorce lawsuit with the people's court, it shall be under the jurisdiction of the people's Court of one party's original domicile or the last residence in China.

The people's Court of the place where the Chinese citizen resides has jurisdiction over the divorce proceedings filed by either party to the people's court, regardless of whether the Chinese citizen resides abroad or in China. If the foreign party brings a lawsuit in the court of the country of residence, and the domestic party brings a lawsuit to the people's court, the people's court subject to the lawsuit shall have jurisdiction.

If both Chinese citizens are abroad but have not settled, and one of them files a lawsuit for divorce with the people's court, it shall be under the jurisdiction of the people's Court of the place where the plaintiff or defendant originally resided.

3 双方均为外国国籍，且在国外登记结婚。中国法院是否受理其中一方在中国提起的离婚诉讼？

Both parties are foreign nationals and registered for marriage abroad. Does the Chinese court accept the divorce lawsuit filed by one of the parties in China?

这种情况比较特殊。大致需满足以下条件：第一、外籍人士在我国有经常居住地；第二、同意中国法院管辖，且同意适用中国法律；第三、人民法院认为确有必要受理。

如，上海市高级人民法院于2011年发布的沪高法立【2011】1号文件中谈到涉外婚姻案件主要涉及两个因素：一是婚姻双方国籍；二是婚姻缔结地。其中只要有一个因素不涉外，我国法院即有管辖权，并应按《民事诉讼法》相关规定确定管辖法院。如两个因素均涉外，即原、被告均为外籍且婚姻关系在国外缔结，则只要原、被告双方共同选择接受我国法院管辖且确需由我国法院处理时，人民法院才能受理。

This is a special case. Generally, the following conditions should be met: first, foreigners have a habitual residence in China; Second, agree to the jurisdiction of Chinese courts and the application of Chinese law; Third, the people's court deems it necessary to accept the case.

For example, the hgfali [2011] No. 1 document issued by the Shanghai Higher People's court in 2011 said that foreign-related marriage cases mainly involve two factors: first, the nationality of both parties to the marriage; The second is the place of marriage. As long as one of the factors is not foreign-related, the courts of our country have jurisdiction and should determine the competent court in accordance with the relevant provisions of the civil procedure law. If both factors are foreign-related, that is, the plaintiff and the defendant are both foreigners and the marriage relationship is concluded abroad, the people's court can accept it only if both the plaintiff and the defendant jointly choose to accept the jurisdiction of the Chinese court and it is really necessary to be handled by the Chinese court.

4 一方为中国国籍，另一方为外国国籍。婚后，中国国籍一方居住在中国，外国国籍的一方居住在国外。双方均在所在国提起离婚诉讼，程序上怎么处理？

One party is of Chinese nationality and the other party is of foreign nationality. After marriage, the Party of Chinese nationality resides in China and the Party of foreign nationality resides abroad. Both parties have filed divorce proceedings in the country where they are located. How to deal with the procedure?

中国法院的离婚诉讼程序不受国外法院程序的制约，即使外籍人士在国外先行提起离婚诉讼，在国内的一方亦有权向中国法院提起离婚诉讼。中国法院按中国法律规定进行审理并判决。《民事诉讼法司法解释》规定了中国公民分居两国的离婚诉讼程序，可以参考。中国公民一方居住在国外，一方居住在国内，不论哪一方向人民法院提起离婚诉讼，国内一方住所地人民法院都有权管辖。国外一方在居住国法院起诉，国内一方向人民法院起诉的，受诉人民法院有权管辖。

The divorce proceedings of Chinese courts are not restricted by the proceedings of foreign courts. Even if foreigners first file divorce proceedings abroad, one party in China has the right to file divorce proceedings with Chinese courts. Chinese courts try and make judgments in accordance with Chinese laws. The judicial interpretation of the civil procedure law stipulates the divorce proceedings of Chinese citizens living in two countries, which can be referred to. The people's Court of the place where the Chinese citizen resides has jurisdiction over the divorce proceedings filed by either party to the people's court, regardless of whether the Chinese citizen resides abroad or in China. If the foreign party brings a lawsuit in the court of the country of residence, and the domestic party brings a lawsuit to the people's court, the people's court subject to the lawsuit shall have jurisdiction.

5 一方为中国国籍，另一方为外国国籍。婚后，中国国籍一方居住在中国，外国国籍的一方居住在国外。双方均在所在国提起离婚诉讼。两国法院均出具判决，但结果相反（一个判离、一个判不离），怎么办？

One party is of Chinese nationality and the other party is of foreign nationality. After marriage, the Party of Chinese nationality resides in China and the Party of foreign nationality resides abroad. Both parties filed divorce proceedings in their home countries. The courts of both countries have issued judgments, but the results are opposite (one is divorced, the other is not divorced). What should we do?

中国法院审理中国公民提起的离婚诉讼，不受国外法院程序及实体的制约，也即，中国法院按中国法律作出相应判决，而不管国外的判决如何。当出现国外判离、国内判不离，则至少在中国领域内，该两人仍然是夫妻。当然国外法院也会认为，该两人已离婚。这涉及到司法制度以及国与国之间判决承认的问题。

The trial of divorce proceedings brought by Chinese citizens by Chinese courts is not restricted by the procedures and entities of foreign courts, that is, Chinese courts make corresponding judgments according to Chinese laws, regardless of foreign judgments. When there is a foreign sentence and a domestic sentence, at least in the field of China, the two people are still husband and wife. Of course, foreign courts will also believe that the two have divorced. This involves the judicial system and the recognition of judgments between countries.

6 国外的离婚判决，中国承认吗？

Does China recognize Foreign Divorce Judgments?

国外离婚的判决，申请人可至其住所地中级人民法院申请承认，我国法院只承认离婚部分，对子女抚养及财产分割，不作承认。对符合相关条件的国外离婚判决，中级人民法院以裁定书的形式对该离婚判决予以承认。我国法院受理离婚诉讼后，原告一方变更请求申请承认外国法院离婚判决，或者被告一方另提出承认外国法院离婚判决申请的，其申请均不受理。我国法院受理承认外国法院离婚判决的申请后，对方当事人向我国法院起诉离婚的，法院将不予受理。参考：《最高人民法院关于人民法院受理申请承认外国法院离婚判决案件有关问题的规定》、《关于中国公民申请承认外国法院离婚判决程序问题的规定》。

For the judgment of divorce in foreign countries, the applicant can apply for recognition at the intermediate people's court in the place of his residence. In China, the court only recognizes the divorce part, and does not recognize the child support and property division. For foreign divorce judgments that meet the relevant conditions, the intermediate people's court recognizes the divorce judgment in the form of a written ruling. After the court of our country accepts the divorce lawsuit, if the plaintiff changes his request to apply for recognition of the divorce judgment of the foreign court, or the defendant makes another application for recognition of the divorce judgment of the foreign court, his application will not be accepted. After the court of our country accepts the application of recognizing the divorce judgment of foreign court, if the other party sues for divorce to the court of our country, the court will not accept it. Reference: the provisions of the Supreme People's Court on issues related to the acceptance of applications by people's courts for recognition of divorce judgments made by foreign courts, and the provisions on the procedures for Chinese citizens to apply for recognition of divorce judgments made by foreign courts.

7 外国法院已经出具离婚判决，并对子女抚养及财产作出处理，中国国籍当事人还可以到中国法院再次起诉离婚吗？

If a foreign court has issued a divorce judgment and dealt with the upbringing of children and property, can a party of Chinese nationality sue for divorce again in a Chinese court?

可以。我国的司法及审理程序均不受国外判决的影响，除非进入了国外判决的承认程序，否则我国法院仍然受理当事人在中国提起的离婚诉讼。也即，当事人之间的婚姻虽经外国法院判决，但未向我国法院申请承认的，不妨碍当事人一方另行向我国法院提出离婚诉讼。

sure. Our judicial and trial procedures are not affected by foreign judgments. Unless we enter the recognition procedure of foreign judgments, our courts still accept divorce proceedings filed by the parties in China. That is, although the marriage between the parties has been adjudicated by a foreign court, but has not applied to the Chinese court for recognition, it does not prevent one party from filing a separate divorce lawsuit with the Chinese court.

8 位于国外的财产，中国法院在判决离婚时会一并处理吗？

Will Chinese courts deal with property located abroad when judging divorce cases?

由于司法制度的不同及财产查明难度的问题，一般情况下，国外的财产，中国法院不作处理，可由当事人至该国诉讼或在国内的诉讼中初步查明、达成初步意见后再另行主张权利。

Due to the differences in the judicial system and the difficulty of property identification, generally speaking, Chinese courts do not deal with foreign property, and the parties can claim rights after preliminary identification and reaching preliminary opinions in the proceedings in that country or in the domestic proceedings.

9 当事人的常住地是国外，离婚案件开庭时本人是否必须要到庭？

The party's permanent residence is abroad. Do I have to appear in court when the divorce case is opened?

离婚案件因涉及解除人身关系，一般情况下，当事人本人必须出庭。但若常住地是国外，回国确实不便，则可在国外作公证委托手续及认证手续，委托国内的律师、法律工作者或符合法律规定的亲戚作为代理人，由他们出庭。若为被告，则还应公证认证“答辩状”，载明自己的婚姻态度，即是否同意离婚。

Because divorce cases involve the dissolution of personal relations, under normal circumstances, the parties must appear in court in person. However, if the permanent residence is abroad and it is really inconvenient to return home, you can go through the notarization and certification procedures abroad, and entrust domestic lawyers, legal workers or relatives in line with the law as agents to appear in court. If you are a defendant, you should also notarize and authenticate the "reply", stating your marriage attitude, that is, whether you agree to divorce.

10 涉外离婚诉讼的送达程序是怎样的？

What is the service procedure of foreign divorce proceedings?

如果被告系外籍当事人且人在国外，且原告知晓被告的具体国外地址，则进行涉外送达，程序将十分繁琐。要翻译诉状、证据、举证通知书、应诉通知书、传票等材料。翻译的周期会比较长（有时为数月）。相应的材料、文书将通过高院的外事机构送到最高院进行涉外送达，周期很长。多数案件将会安排在立案后的十个月至甚至一年后开庭。若未成功送达或没有回应，则只能再次登报公告（人民法院报），送达相应文书及传票，周期又将达数月。往往是立案一年后，都未能进入到开庭程序。涉外离婚案件，大多数情况是缺席审理，往往庭审时间短，但送达周期长。

If the defendant is a foreign party and the person is abroad, and the plaintiff knows the defendant's specific foreign address, the process of foreign-related service will be very cumbersome. It is necessary to translate pleadings, evidence, notice of proof, notice of response, summons and other materials. The translation cycle will be relatively long (sometimes several months). The corresponding materials and documents will be sent to the Supreme Court through the Foreign Affairs Department of the high court for foreign-related service, which takes a long time. Most cases will be held 10 months or even a year after filing. If it is not successfully served or there is no response, it can only be published in the newspaper again (people's court newspaper), and the corresponding documents and summons will be served for a period of several months. It is often one year after the case is filed that it fails to enter the court proceedings. Most cases of divorce involving foreign affairs are heard in absentia, and the trial time is often short, but the delivery period is long.