China: Family Law Comparative Guide

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

China, like other continental jurisdictions, enacts its laws in statutes and codes. On 1 January 2021, the Civil Code of China (for the purposes of this Q&A, ‘China' does not include the territories of the Hong Kong Special Administrative Region (SAR), the Macau SAR and Taiwan Province) – the first of its kind – became effective, encompassing the bulk of family laws.

In practice, the judicial interpretations of the China Supreme Court of statutes are binding on, and applied by, the Chinese courts.

The Ministry of Civil Affairs (MCA), together with its lower counterparts, is in charge of the administration of registration of marriages and divorces in China, and has promulgated pertinent regulations in this regard.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

Unfortunately, China is not an active member of international family law conventions. However, China has signed some 38 bilateral treaties with other jurisdictions, under some of which civil judgments – including family law judgments – can be mutually recognised and enforced in the other jurisdictions. Some of these jurisdictions do not recognise and enforce court judgments.

This list should be checked when it comes to international family cases in China or which otherwise involve China, to ensure that pertinent family court judgments can be finally enforced.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

The primary government agency involved in the enforcement of family laws is the MCA. The registration of marriages, divorces and child adoption falls within the ambit of the MCA's powers. As a registration authority, its powers are passive and activated only upon application.

The courts are empowered to issue injunctions to prevent domestic violence.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

This depends on the type of foreign judgment or order.

Generally speaking, foreign court judgments on the dissolution of valid marriage (or divorces themselves) can be recognised and enforced in China provided that at least one party thereto is a Chinese citizen (through the necessary authentication). Other foreign judgments relating to child custody and the division of matrimonial property are not recognised and enforced in China unless international conventions or bilateral treaties state otherwise.

There are no laws or rules in China on the recognition of foreign judgments on the annulment of marriages. It is thus the author's view that such foreign judgments cannot be recognised and enforced.

China does not have a legal separation regime, and thus foreign judgments or orders thereon cannot be recognised and enforced.

That said, the Hong Kong SAR, as part of China but with a distinctly different UK-based legal system, has a closer relationship under the bilateral arrangement between China mainland and the Hong Kong SAR entered into on 15 February 2022. Under this arrangement, certain defined Hong Kong court judgments and orders can be recognised and enforced.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

Under the Civil Procedures Law, the rules on the Chinese courts' jurisdiction over matrimonial and family law matters are very much in line with those governing jurisdictions over all civil disputes. In disputes involving Chinese citizens, the proper court is that of the place where the defendant is domiciled. If the defendant's domicile is not the place where he or she habitually resides, the court in the place of his or her habitual residence will have jurisdiction.

However, there are exceptions set out in the Civil Procedures Law and its interpretations by the Supreme Court, such as the following:

• A lawsuit involving personal relationships (typically a divorce) against a defendant who does not reside in the territories of China (for the purposes of this Q&A, territories of China do not include the Hong Kong Special Administrative Region (SAR), the Macau SAR and Taiwan) will be entertained by the court with jurisdiction over the domicile or habitual residence of the plaintiff.
• Where one spouse lives in the territories of China and the other party lives outside China, either party may file a divorce case with the court at the place where the first-mentioned party lives.
• Where both spouses are Chinese citizens who live outside China, but neither has settled in the relevant country, their divorce case can be filed with the court of the place of either party's original domicile in China.
• Where divorced Chinese citizens who have settled outside China wish to file a case to divide assets in China, the court at the place where the major assets are located will have jurisdiction.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

When it comes to competing jurisdictions between Chinese courts and foreign courts, the general rule is that despite a foreign court exercising jurisdiction, the Chinese courts will exercise parallel jurisdiction.

That said, on 15 February 2022, China entered into a bilateral arrangement with the Hong Kong SAR on the recognition and enforcement of matrimonial case judgments, whereby the commencement of proceedings for recognising and enforcing judgments or orders of the Hong Kong courts can preclude the Chinse courts from exercising jurisdiction over the same matter.

China has also adopted the so-called ‘forum non conveniens' doctrine, under which the Chinese courts can pass cases to foreign courts.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

China does not recognise same-sex marriages or common law couples. For couples who live together without registering their marriage with the Ministry of Civil Affairs (MCA) (as defined in question 1.1), if the relationship breaks down there is little protection offered to the weaker party, especially in terms of financial protection. The general property laws and equities are applied by the Chinese courts in deciding on the ownership of property in dispute.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

Regardless of the length of the co-habiting relationship, no spousal or matrimonial rights and obligations are bred and brought about as between the parties under Chinese law.

In the event of the breakdown of the relationship, property acquired and accumulated during the relationship is dealt with according to the general property laws. The matrimonial community property regime shall not be presumed to apply to the ownership of assets of co-habiting partners.

However, the protection of the anti-domestic violence injunction is extended to co-habiting couples, even once their relationship has ended.

On the other hand, following the breakdown of their relationship, the rights of co-habiting couples as parents are much the same as those of parents in a legitimate marriage.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

There is no way to formalise the relationship of co-habiting couples. China does not recognise the concept of a registered civil partnership.

However, co-habiting couples can always transform their relationship into a marriage by registering with their local MCA office.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Same-sex marriages are not recognised, as they are thought to be contrary to China's public policies.

It is arguable that government-registered civil partnerships – such as those in the United Kingdom, which are substantially the same as a formal marriage under UK law – should be recognised by the Chinese courts under Chinese laws; however, we have seen no such successful precedent in judicial practice.

For other type of common law unions/marriages, it remains to be seen how the Chinese courts will treat them; it is our personal opinion that the Chinese courts may be averse to recognising such relationships.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

To enter into a valid marriage under Chinese laws, a couple must meet the following conditions:

• Neither of them must commit bigamy;
• Both must meet the statutory minimum age requirements (ie, 22 years old for husbands and 20 years old for wives); and
• They must not have a relative relationship prohibited by law for the purpose of marriage. In China, persons who are lineal relatives by blood or collateral relatives by blood up to the third degree of kinship cannot marry.

These are three legal grounds prescribed by law for annulling a marriage.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

No, China does not recognise common law or de facto marriages, except those existing before 1 February 1994, when China formally commenced its marriage registration regime.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Foreign marriages are generally recognised by the Chinese courts regardless of whether they involve a Chinese citizen, provided that such recognition does not violate China's public policies. As mentioned in question 3.1, same-sex marriages are not recognised in China.

4.4 Does a specific marital property regime apply in your jurisdiction?

Yes, China has adopted the community property regime as the default regime for governing matrimonial property between couples. Assets acquired after marriage by either party are, unless otherwise proved, considered community properties co-owned by both spouses. In particular, inheritances and gifts received by either party after marriage are subject to the community property regime unless they are proved to be intended for one spouse only.

On the other hand, there is no right of survivorship attached thereto under Chinese matrimonial property laws.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

China recognises pre- and postnuptial agreements addressing the ownership of matrimonial property between the spouses. There are no requirements on the place of conclusion of such agreements.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

There are no formal or procedural requirements for concluding a pre- or postnuptial agreement, except that such agreements must be made in writing. The section on marriage in the Civil Code provides that such an agreement should address the ownership of matrimonial property only and not other marital issues.

However, in practice, many nuptial agreements are expanded to cover infidelity, divorce and child custody. Not all such provisions will be upheld by the Chinese courts; and indeed the courts are divided on some of these issues. For a detailed discussion, please view this article addressing this topic.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

The following points are relevant to international couples:

• the timing of conclusion of the agreement, as some jurisdictions do not recognise postnuptial agreements;

the purchase of real property outside the Chinese mainland – the applicable law determining title and ownership of real property is the local law;

• the matrimonial property regime (ie, the community property regime or separate property regime; assets singled out for particular treatment);
• any change in domicile and applicable laws; and
• the Chinese foreign exchange rules, which will affect the transfer of property and money across borders.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Not applicable to same-sex couples.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

China has no legal or judicial separation regime in place.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

As outlined in question 2.1, the general rule is that as long as the defendant has his or her domicile or habitual residence in mainland China, the divorce case will be entertained by the Chinese courts. There are also some special rules addressing jurisdiction in divorce cases (please see question 2.1).

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

As in most other jurisdictions, if a marriage has irretrievably broken down, the Chinese courts are willing to grant a divorce to a couple.

The Civil Code sets forth the following statutory circumstances in which divorce will be granted by the courts:

• One party commits bigamy or co-habits with another of the opposite sex continually and stably;
• One party commits domestic violence or maltreats or deserts a family member;
• One spouse habitually commits acts such as gambling, drug abuse or similar, and refuses to correct such behaviour despite repeated warnings; or
• The spouses have been separated for no less than two full years due to marital discord.

In the absence of the statutory circumstances set out above, the courts are often reluctant to grant a divorce to parties on their first attempt to divorce; they are more willing to grant a divorce once the parties file a divorce case for the second time after the expiry of the statutory six months following the closing of the first divorce proceeding.

The Civil Code added a new provision to the effect that the courts SHALL grant a divorce if the parties continue to live separately for up to one year after the preceding court proceeding for divorce ends without success.

6.3 How does the divorce process typically unfold and what is the general timeline?

A divorce case in China generally proceeds as follows:

• One party files the case with the court with its complaint and initial evidence, and the court makes its decision of acceptance within seven days.
• If the filing is accepted, the court will serve the documents on the other party within five days of acceptance of the case filing.
• The other party may submit his or her response to the court within 15 days.
• The court serves the writ of summons on the parties to the proceeding at least three days before the date of hearing.
• During the hearing, the court admits evidence that will be examined and cross-examined by both parties. In practice, there could be multiple hearings for any given case.
• The court must deliver judgment within six months of the date of case filing. However, foreign-related cases are not subject to this time limit. In addition, periods of and for constructive notification, forensic evidence discovery, mediation between the parties and proceedings involving a challenging determination of jurisdiction are not included in this six-month time limit.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

In China, divorce and other related matters are handled in the same proceedings. Divorce is a prerequisite before the courts will proceed to consider other ancillary matters such as the division of property and child custody and maintenance.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

Yes, amicable divorce through agreement is available in China. When the couple agrees on the divorce terms – including the division of property and child custody and maintenance – they can directly apply to the Marriage Registration Department to register their divorce.

However, there is a 30-day cooling-off period for the couple following receipt by civil affair department of their application for divorce. During this cooling-off period, either party can withdraw the divorce application. Upon the expiry of the cooling-off period, the couple should go together to the civil affair department in person to apply for their divorce certificate within 30 days of the expiry of the cooling-off period. If the couple fails to apply for their divorce certificate during the second 30-day period, their application for divorce will be deemed withdrawn.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes, foreign divorce judgments are generally recognised in China. However, foreign court decisions on property division and child custody and maintenance are not recognised by the Chinese courts unless bilateral judicial assistance treaties dictate otherwise. Religious divorces are not recognised in China, as the current rules address only foreign court divorce judgments.

A foreign court divorce judgment can be recognised by the Chinese courts only if a party thereto is a Chinese citizen. Proceedings for the recognition of a foreign divorce judgment can be initiated by either a Chinese citizen or his or her foreign ex-spouse at the Chinese courts.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

Separation proceedings are not applicable in China, but marriage nullity proceedings are available.

The legal grounds for annulment of marriage are clearly laid out in the Civil Code as follows:

• Either party to the marriage commits bigamy;
• The parties to the marriage are prohibited by law from marrying due to a relative relationship between them; or
• Either party to the marriage is under the statutory marriageable age.

No other reasons or grounds can be relied on to annul a marriage in China. This could be problematic for the recognition of a marriage annulment decision made by foreign courts.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

Effective service of judicial documents requires delivery to the person on whom the documents are being served, manifested either by a receipt signed by that person or by other methods as prescribed in the Civil Procedures Law (eg, delivery to adult family members living with that person).

The Civil Procedures Law sets out the following special rules for service of judicial documents on a party who is not domiciled within the territories of China:

• by methods specified in international treaties concluded or acceded to by both China and the country in which the person on whom service is to be made resides;
• by making the service through diplomatic channels;
• with respect to Chinese citizens residing abroad, by entrusting service to the embassy or consulate of China accredited to the country where the person resides;
• by making the service through an agent ad litem who is authorised to receive the documents served;
• by serving the documents on a representative office established in China by the person on whom the service is to be made, or on his or her branch office or business agents who have the right to receive the documents;
• by making service by mail if the law of the country where the person on whom service is to be made resides so permits. If receipt of delivery is not returned six months after the date on which the documents were mailed, and the circumstances justify the assumption that service has been made, service will be deemed completed upon the expiration of this timeframe; or
• by making the service through constructive notice by publication, if none of the abovementioned methods can make successful service. The service will be deemed complete three months after the date on which the public notice was issued.

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

In Chinese judicial practice, it is the duty of the courts to divide matrimonial property pursuant to Chinese law. The courts will examine the financial aspects of a divorce and hear evidence about the financial resources and conditions of each party, as an indispensable part of the divorce proceedings.

7.2 Spousal and child maintenance:

1. What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
2. What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
3. When do spousal and child maintenance expire?
4. What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
5. Which bodies are responsible for issuing child support orders in your jurisdiction?
6. Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?
7. Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
8. What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
9. What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

There is no post-divorce spousal maintenance in Chinese divorce law. As mentioned in question 5.5, Chinese divorce law does not recognise the concept of judicial separation.

Regarding child support, the Chinese courts generally order the parent who does not live with the child to pay a monthly maintenance fee until the child reaches the age of 18.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

There is no specific formula for calculating the amount of maintenance. The courts will consider:

• the actual needs of the child;
• the financial capability of the parent; and
• the local living standards.

Where a parent has a fixed monthly income, the courts may order him or her to pay an amount of between 20% and 30% of his or her monthly income. Where there is more than one child, the courts may specify a greater percentage, but not more than 50% of the parent's monthly income.

(c) When do spousal and child maintenance expire?

Child support generally expires when the child reaches the age of 18.

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

When the paying parent dies, the burden of childcare and maintenance rests with the surviving parent. China has not established personal bankruptcy laws.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

The Chinese courts.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

Regardless of whether the parents are formally married, children are entitled to support from their parents.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

Yes, a child in China has the right to directly sue either parent to provide increased support if the current support is insufficient..

In practice, a child can always request further support after his or her parents' divorce if the original amount of support is not enough to cover living costs or medical or educational expenses.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

The biggest concern is the cross-border enforcement of court judgments. As outlined in question 6.6, China does not recognise foreign court decisions on spousal and child support. As a matter of reciprocity, it is the author's view that many foreign jurisdictions do not recognise Chinese court decisions on such issues either.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

In China, if a parent fails to provide support as ordered by the court, the child can apply to court to have the obligation against the defaulting parent enforced. To this end, the Chinese courts can directly order:

• the transfer of money from the bank account of the defaulting parent; or
• a deduction from the defaulting parent's income.

Failure to pay the amount ordered by the court may result in the imposition of a monetary fine or even detention by the court.

7.3 Asset division:

1. What orders can the court make in relation to the division of assets on divorce or judicial separation?
2. What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
3. How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
4. Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
5. Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
6. Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
7. What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
8. If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
9. Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

For divisible assets such as cash, liquid stock, bonds or fund units, the court may award a specific percentage thereof to each spouse in the absence of any agreement between them. For real estate, in the absence of any agreement between the parties, ownership is generally awarded to one party through bidding between them or division based on evaluation, while the other party is compensated by the first-mentioned party. If neither party wants the property, the court may order the sale of the property upon request by the parties and the division of the sale proceeds. We have also seen courts order ownership in the form of tenancy in common by the parties where both parties want to keep their property and neither party can afford to buy out the other party.

The situation is more complicated in the case of dividing corporate equity interests/shares in non-public companies, as this involves the interests of other shareholders. The spouse holding title to the corporate shares may, upon the agreement of the other spouse, pay the corresponding value to the latter, unless the latter is allowed to hold part of the shares in question as a result of the operation of corporate laws.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

China adopts the community property regime as the default matrimonial property regime. Unless a pre- or postnuptial agreement stipulates otherwise, the Chinese courts tend to divide matrimonial properties (howsoever acquired after marriage) in equal shares or in slightly skewed percentages in favour of the wife.

As mentioned in question 7.3(a), the courts will take into account the type of assets when making orders for the division of marital assets.

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

The Civil Code provides that:

Where one spouse conceals, transfers, sells off, destructed or damages, or squanders the community property, or creates a false community debt in an attempt to unlawfully seize the property of the other spouse, the said spouse may receive less or no property upon partition of the community property in the case of divorce. Where one of the aforementioned acts committed by one spouse is found after divorce, the other party may file a lawsuit with the courts for re-partition of the community property.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

Yes, this is fairly common where the parties cannot agree on the value of real property or corporate shares of non-public companies.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?

There are no special rules on dividing the family home and the general rules described in question 7.3 will apply. In practice, courts often favour the female party who is awarded physical custody of the child.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

While trusts are recognised in China, cases seldom involve private family trusts in practice. It is the author's personal opinion that upon divorce, a trust settled on matrimonial community property by one spouse without the consent of the other spouse may well be disregarded. On the other hand, if such trusts are created with the mutual consent of the couple, they should be regarded as separate from the pool of matrimonial property that is subject to division by the courts.

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

See question 7.2(i).

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

This is a similar question to question 6.5. Yes, a non-judicial resolution is possible if the parties are agreeable on the overall divorce terms, including financial matters and child custody and maintenance.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

Since the Chinese courts do not recognise decisions on financial matters and child custody and maintenance in foreign court divorce judgments, they will not make any order on financial matters in relation to foreign divorces.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

The general principle governing child custody arrangement is the ‘best interests of the child'.

Under the current laws, the courts will consider the following factors:

• Custody of a child under the age of two is generally awarded to the mother, unless the mother is proved to be unfit to live with the child.
• For a child over two years old, courts will favour a parent who:
• • has undergone sterilisation or is otherwise infertile;
  • has lived with the child for a longer period of time, if a change of living environment would be harmful to the wellbeing and upbringing of the child;
  • has no child, if the other party has a child; or
  • is good for the upbringing of the child, if the other parent has a chronic infectious diseases or other serious disease, or is otherwise unfit to live with the child.

Where both parents are on par with each other in terms of rearing conditions for the child, any grandparents who have lived with the child and have the ability to look after the child are also a plus for the courts to consider.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

In China, same-sex marriages are not recognised by law. Children born out of wedlock are treated the same as those born in wedlock or legitimate children under Chinese laws.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

Yes, children's matters are an indispensable part of divorce proceedings. The Chinese courts will always first try to mediate between the parties on child custody and maintenance, as well as visitation.

Children's matters can be separately litigated after the divorce is complete. For example, children can directly sue their parents for increased maintenance; and a parent may sue for custody of the child if circumstances have changed in his or her favour.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

Occasionally, psychologists are engaged to assist children who are psychologically damaged or traumatised. Other than that, our personal practice confirms that experts are seldom engaged.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

Unfortunately, there are no rules governing the removal of a child from China. China is not a party to the Convention on the Civil Aspects of International Child Abduction. The author is aware of one case in which a foreign father, after a divorce, removed one of his children from China, and the Chinese mother fought for custody of the child in the foreign jurisdiction.

8.6 What regime applies to the international abduction of children in your jurisdiction?

China is not a party to the Convention on the Civil Aspects of International Child Abduction, and there are no pertinent rules in this regard. Foreign parents must file a case in China to fight for custody of a child that is brought into China.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

Surrogacy is not valid in China. Agreements and contracts that violate the principles of public policies are null and void. Therefore, a surrogacy agreement is not legally valid.

9.2 Are surrogacy arrangements legal in your jurisdiction?

No. However, children born out of surrogacy can be recognised as family members under Chinese law.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

As surrogacy agreements are void in China, the traditional approach of a paternity test is required in order to establish a legal relationship; or adoption is employed to establish a legal relationship between the surrogacy children and the commissioning parents.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

The Civil Code includes a whole section of the family law chapter to the adoption regime.

The following points should be borne in mind when adopting a child in China:

• Only children who are orphans, whose parents cannot be traced or whose natural parents, due to unusual hardship, are unable to raise them can be adopted;
• Only people who are at least 30 years old, who have no children or only one child, who are capable of supporting, educating and protecting the adopted children, and who have no diseases or criminal records that are unfit for healthy growth of the adopted children are allowed to adopt;
• Single persons with no spouse can only adopt a child of the opposite gender who is at least 40 years younger; and
• Adoption will be effective only upon proper registration with the local civil affairs department, and the effective adoption severs the legal relationship between the adopted children and their natural parents.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

As China does not recognise same-sex marriage, it is impossible for same-sex couples to register their adoption with the local civil affairs department.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

Except for divorce litigation, mediation is the main form of ADR used to resolve family law matters, as follows:

• People's Mediation Committee: This is a self-help communal organisation sponsored by Chinese local governments. Mediation is offered free of charge.
• Pre-litigation mediation at the courts: The Chinese courts are obliged to mediate family-related disputes before the case is officially moved to litigation.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

Mediation is possible only where the parties agree to participate. In other words, if one party doesn't agree on mediation, the case will immediately progress to litigation.

Settlements reached through mediation can be affirmed by the courts upon the application of the parties. Settlements thus affirmed by the courts can be enforced through the courts.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

A family law dispute involving a foreign party can be a lot more complicated, especially when the foreign party is not domiciled or resident in China. There are several issues to consider:

• The main concern in terms of procedural laws relates to the service of court documents on the foreign party, which can be very lengthy if done through methods in international conventions or diplomatic channels;
• From the perspective of substantive laws, the choice of applicable law for specific legal issues in a given foreign-related case can be critical, resulting in distinctly different outcome. After all, in many respects, the Chinese family law regime differs significantly from those in other jurisdictions;
• When a foreign party is involved, it is likely that the foreign party will need to take money out of China, which will trigger China's foreign exchange regulations. This may hinder the process of getting money across the Chinese border; and
• China custody and visitation is another thorny issue where a foreign parent is involved.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

China has its own version of an anti-domestic violence law. The victims of domestic violence or their immediate family members (as defined in the Civil Code), as well as local police officers, women's union and local residents or a villagers' committee, can apply to court for an injunction order to protect the victims of domestic violence.

Such injunction orders can order the following:

• a prohibition against domestic violence;
• a prohibition against harassing, stalking or approaching the victim and his or her immediate family members;
• that the subject of the order move out of the residence of the victim; or
• such other appropriate measures as the court may think fit.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

Unmarried couples can also seek a protection order from the courts under and by reference to the anti-domestic violence law. This position has been further augmented by the amendment to Chinese law on the protection of women's rights and interests, effective as of 1 January 2023.

11.3 How are these orders enforced and by whom?

Protection injunction orders issued by the Chinese courts are enforced by the Chinese courts themselves. Local police officers and local residents and villagers' committees can assist with the enforcement of such court orders.

11.4 How soon will the party's application be dealt with in these circumstances?

An application for a protection injunction will be dealt with within 72 hours of receipt of the application and, in emergencies, within 24 hours.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

In the author's view, the Chinese courts do not appear to have the same inherent jurisdiction or power to make a child a ward of the court based on the common understanding of this term.

When it comes to the appointment of a guardian for a child, the Chinese courts have the ultimate power to decide on who should be the guardian and to change guardianship through court proceedings. However, they are not involved in decision making for the child.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The Civil Code and its relevant chapter on family law mark a new era in Chinese family law for decades to come. In the author's view, the Chinese family law regime adopts a conservative attitude compared to the liberal view that characterises Western family law.

In particular, while more and more jurisdictions (eg, the United Kingdom) have adopted a no-fault divorce system to make divorce easier, China has expanded the fault-based provisions that allow the no-fault party to claim damages.

Also, China does not seem ready to recognise same-sex marriage any time soon.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

This is hard to say. It really depends on the personalities and characters of the spouses. Early consultation with family lawyers should help the parties to come to their senses and better understand their individual positions. For international couples, it is critical to understand the legal implications of their place of domicile and habitual residence, as this will determine the laws to be applied by the Chinese courts in dealing with issues in their divorces. Equally important is the choice of forum for divorce litigation, which could give rise to different results in the divorce and other pertinent issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.