The FAQs of law arrangements of foreign-related marriage in China
By Sun Jin(Marlow), Chinese attorney at Law, Republishing this article please indicate author and source of this article. July 29, 2022
In recent days, the divorce between WangLeehom and Li Lianglei has received unanimous attention from the whole network and caused extensive discussion. When ordinary people are keen on motional disputes and the division of huge amounts of property, our lawyers should focus on the ownership of custody of minor children in the foreign-related marriage involved in this case from a more professional perspective and how to use the applicable legal dispute to stop disputes. Today, we will have a preliminary understanding of the legal application of foreign-related marriage through a few small questions.
Question one: What is foreign-relatedmarriage?
According to Article 1 of the judicialinterpretation of the law of the people's Republic of China on the application of law on foreign related civil relations (hereinafter referred to as "the law of the application of law > judicial interpretation"), the criteria for judging foreign-related marriage are:
1. One or both of the parties are foreigncitizens or stateless persons;
2. The habitual residence of one or bothparties is outside the territory of the people's Republic of China;
3. The legal facts that create, change oreliminate civil relations occur outside the territory of the people's Republic of China;
4. Other situations that can be identifiedas foreign-related civil relations.
Question two: How to know a person'shabitual residence address?
According to Article 13 of the judicialinterpretation of the law on the application of law, where a natural person has resided continuously for more than one year and is the center of his life at the time of the occurrence, change or termination of a foreign-related civil relationship, the court may recognize it as the habitual residence of the natural person specified in the law on the application of foreign-related civil relations, except for medical treatment, labor dispatch, official duties, etc.
Question three: My partner is aforeigner, and we are going to get married, Which country's laws should be referred to?
According to the provisions of Article 21of the law of the people's Republic of China on the application of law in foreign related civil relations (hereinafter referred to as the "law of the application of law"), both parties shall first refer to the applicable laws of the place where they live together; If there is no common place of residence, refer to the laws and regulations of the common country of nationality; If there is no common nationality and one party marries in the place of habitual residence or the country of nationality, the law of the place where the marriage is concluded shall be referred to.
Question four: If both parties areChinese and their common residence is also in China who does not meet the marriage conditions stipulated in China's civil code, but if they meet the marriage conditions of a foreign country, can they register your marriage abroad?
No. According to the judicialinterpretation of China's law on the application of laws, the above-mentioned acts belong to the connection point of the parties' intentional creation of foreign-related
Question five: What legal provisionsshould be followed for the marital property of foreign marriage
According to Article 24 of the law of thepeople's Republic of China on the application of law, the property relationship between husband and wife first follows the principle of respecting the parties.
Question six: What legal provisionsshould be followed when divorcing a foreign-related marriage via mutual agreement?
According to Article 26 of the law of thepeople's Republic of China on the application of law, the principle of divorce by mutual agreement is to respect the choice of the parties. The parties can choose to apply the law of the party's habitual residence or the law of the country of nationality by agreement. If the parties have no choice, the law of common habitual residence shall be applied first; If there is no common place of residence, the law of the common state of nationality shall apply; If there is no common nationality, the law of the place where the institution handling
Question seven: When foreign marriage iswith minor children, which country's law should be applied to parent-child relations and property relations?
According to Article 25 of the law on theapplication of law, the law of the common habitual residence shall apply to the personal and property relationship between parents and children; If there is no common habitual residence, the law of the habitual residence of one party or the law of the state of nationality that is conducive to the protection of the rights and interests of the weak shall apply. In foreign marriage, compared with the principle of respecting the choice of the parties in the relationship between husband and wife, the principle of protecting the weak is more emphasized in the personal relationship and property relationship between parents and children.
Question eight: What legal provisionsshould be followed in divorce by litigation?
According to the provisions of Article 27of the law on the application of law, divorce proceedings should follow the law of the place where the court is located.
Question nine: If the agreement choosesforeign laws, or foreign laws should be more conducive to protecting the weak, what will the court do?
This involves the identification of foreignlaws. According to Article 10 of the PRC law on the application of laws, the applicable foreign laws in foreign-related civil relations shall be ascertained