CHINA Law and Practice Contributed by: Hongyu Liu, Shuaifeng Wang, Dongda Wei and Chen Rong, King & Capital Law Firm
Other Processes Other processes include the following.
When reviewing the application, the court considers factors such as the connection of the case to Chinese courts, whether a foreign court is more convenient to hear the case, whether significant interests of Chinese citizens are involved, etc. In practice, Chinese courts generally prefer to exercise jurisdiction unless there are other statutory reasons not to.
• Annulment of marriage: According to Article 1051 of the Civil Code, grounds for annulment include bigamy, kinship within prohibited degrees of rela ‑ tionship and failure to reach the legal age for mar ‑ riage. An annulment must be adjudicated by the court, and the marriage is void ab initio. • Judicial separation: Chinese law does not have the concept of “judicial separation”. However, the fact of separation can be used as evidence in divorce proceedings (eg, separation for two years can be considered as “breakdown of mutual affection”). There is no independent separation procedure. 1.2 Choice of Jurisdiction in Divorce Proceedings The primary jurisdictional basis for divorce lawsuits is the court of the defendant’s domicile or habitual resi ‑ dence (Civil Procedure Law Article 21). Under special circumstances, the court of the plaintiff’s domicile may also have jurisdiction (eg, if the defendant is not within Chinese territory or their whereabouts are unknown). This does not apply to same-sex spouses or civil part ‑ ners, as the law does not recognise such relation ‑ ships. The concepts of domicile, habitual residence and nationality are relevant to determining jurisdiction in divorce matters, and courts primarily consider the defendant’s domicile or habitual residence: • domicile – the location of a citizen’s household registration ( Hukou ); • habitual residence – the place where a citizen has resided continuously for more than one year; and • nationality – Chinese nationality is a factor in determining jurisdiction, but domicile or habitual residence are usually the primary factors. A party to divorce proceedings can contest jurisdic ‑ tion. A party can raise a jurisdictional challenge dur ‑ ing the defence period, which the court will review. Concurrently with the challenge, a party can apply for a stay of proceedings.
2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings
Determining which court has jurisdiction is the first step in initiating litigation. According to Chinese law, the determination of jurisdiction primarily follows the following principles. • Consolidated adjudication with divorce proceed ‑ ings: If a request for property division is made simultaneously with the initiation of divorce pro ‑ ceedings, then the property division claim will be under the jurisdiction of the court handling the divorce case. The jurisdiction over divorce cases generally follows the principle of “the plaintiff fol ‑ lows the defendant”, meaning the case falls under the jurisdiction of the People’s Court where the defendant is domiciled. If the defendant’s domicile is different from their habitual residence, the case falls under the jurisdiction of the People’s Court of their habitual residence. • Separate property division lawsuit after divorce: When spouses file a separate lawsuit specifically for property division after having already divorced through agreement or court judgment, the cause of action is “post-divorce property dispute”. Such lawsuits also follow the general territorial jurisdic ‑ tion principle, meaning they fall under the jurisdic ‑ tion of the People’s Court where the defendant is domiciled. • Common misconception regarding immovable property and exclusive jurisdiction: It is particularly important to note that property division disputes arising from divorce, even if they primarily involve immovable property, do not fall under the “exclu ‑ sive jurisdiction over immovable property” stipulat ‑ ed in the Civil Procedure Law. This is because such disputes are inherently related to marriage and
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