CHINA Law and Practice Contributed by: Hongyu Liu, Shuaifeng Wang, Dongda Wei and Chen Rong, King & Capital Law Firm
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1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce In China, the primary ground for divorce is the “break ‑ down of mutual affection” between spouses. Accord ‑ ing to Article 1079 of the Civil Code, specific circum ‑ stances include bigamy, cohabitation with a third party, domestic violence, abuse or abandonment of family members, persistent gambling or drug abuse despite repeated admonitions and separation due to marital discord for two full years. The core criterion is the breakdown of mutual affection. The same grounds do not apply to same-sex spouses or civil partners, as Chinese law does not recognise same-sex marriage or civil partnerships. Marriage is exclusively defined as between a man and a woman. Divorce Procedure In China, there are two procedures for divorce. • Divorce by agreement (Consensual Divorce): Both parties must voluntarily agree to divorce and apply together to the marriage registration authority. The voluntary divorce process also includes a “divorce cooling-off period” system: within 30 days from the date the marriage registration authority receives the divorce application, either party can withdraw the application. Within the next 30 days after the cooling-off period ends, both parties must appear in person to apply for the divorce certificate; oth ‑
erwise, the application is deemed withdrawn. The timeline is generally 1-2 months. • Divorce by litigation (contested divorce): If one party seeks divorce and the other disagrees, the initiating party can file a divorce lawsuit with the court. The court will first attempt mediation. If mediation fails, the court will issue a judgment. The timeline varies depending on the complexity of the case – generally 3–6 months, but complex cases may take longer. Parties do not necessarily have to initiate litigation; divorce by agreement does not require court proceed ‑ ings. There is no mandatory requirement for a sepa ‑ ration period prior to divorce, but separation for two full years can serve as evidence of the breakdown of mutual affection. • The rules for service are based on the Civil Proce ‑ dure Law. The court serves legal documents such as the copy of the complaint and summons to the defendant through methods including direct ser ‑ vice, service by detention (leaving the documents at the recipient’s residence with certain conditions), service by mail, entrusted service or service by public announcement. Service by public announce ‑ ment is used when the defendant’s whereabouts are unknown; the announcement period is 30 days. • Religious marriages have no legal effect in China; marriages must be legally registered to be valid. Divorce also requires legal procedures (either by agreement or litigation).
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