With the deepening of economic globalization, it is more and more common for Chinese citizens to work and live abroad, and the same is the case with getting divorced abroad. However, a divorce decree granted by a foreign court doesn’t directly have the legal effect of divorce in China. Hence, if you want to remarry in China, you must apply to a Chinese court to recognize your divorce decree granted by a foreign court before getting remarried. Otherwise, you would commit the crime of bigamy. Detailed interpretations of related issues in a case our lawyers have recently handled are given as follows:
随着经济全球化的不断加深,中国公民在世界各国工作与生活的情况已很普遍,在国外离婚的情况也稀疏平常。但外国法院的离婚判决书并不能直接在国内产生离婚的效力,如果想在国内再结婚,必须先向中国法院申请承认外国的离婚判决书,否则涉嫌构成重婚罪。本文以团队的一起亲办案件为例,详细为大家解读相关问题。
【Basic Facts】
【基本案情】
Having got married in 2010 in China, Ms.Xin and Mr. Yan went to work in the U.S. Later, Mr. Yan sued Ms.Xin for divorce at a U.S. court, which granted the couple a divorce judgment in May 2018. Not before long, Ms.Xin dated a man in China and became pregnant. In order to welcome the new life, Ms.Xin wanted to register her upcoming marriage in China but was informed by civil affairs authorities to apply to a Chinese court to recognize the effect of her divorce decree granted by the U.S. court. After repeated failures to get the recognition of her divorce decree from a Chinese court through non-professional agents, Ms.Xin turned to us for help.
辛女士与严先生2010年在国内登记结婚,不久便共同至美国务工。后双方因感情不合,严先生在美国法院起诉了辛女士离婚,2018年5月美国法院判决准予双方离婚。之后,辛女士交往了国内的某位男士,并怀孕,为迎接新生命的诞生,辛女士想在国内办理结婚登记,但被民政部门告知需先向国内法院申请承认其美国离婚判决书的效力。在非专业人士代理其向法院申请承认离婚判决书几度受阻后,辛女士求助到我团队。
【Lawyers’ efforts and results】
【律师所做工作及结果】
1. Identify the jurisdictional error and then apply to the Chinese court with jurisdiction
A case applying for recognizing a foreign divorce decree shall be accepted by the intermediate people's court in the place where the applicant has his/her domicile. When an applicant’s domicile isn’t his/her habitual residence, the intermediate people's court in the place where the applicant has the habitual residence shall accept the case. When an applicant is not in China, the intermediate people's court in the place where the applicant’s former residence was located shall take in the case. It turned out that Ms.Xin’s former attorneys filed her case with the wrong court with no jurisdiction. On the day of accepting the client’s entrustment, our lawyers communicated with the former court to withdraw the case and reapplied to the intermediate people's court in the place where Ms.Xin’s registered residence is located.
1.纠正管辖错误,迅速向有管辖权的法院提交立案申请
申请承认外国离婚判决的案件,由申请人住所地的中级人民法院受理。申请人住所地与经常居住地不一致的,由经常居住地中级人民法院受理。申请人不在国内的,由申请人原国内住所地中级人民法院受理。但辛女士委托我团队前,案件被不具有管辖权的法院受理,接受委托当天,团队律师便与该受案法院沟通撤诉,并同时向辛女士户籍所在地的中级人民法院成功提交了立案申请。
2. Overcome the difficulty of service of process and persuade Mr. Yan to cooperate and participate in the litigation proceedings
Service of process is a challenge in almost all foreign-related cases. Take this case as an example, Ms.Xin and her ex-husband have been divorced in the U.S. for years, and the ex-husband remained there during the trial of this case. Our lawyers managed to reach Mr. Yan through various channels, such as email and telephone and succeeded in persuading him to actively cooperate and participate in the trial process.
2.解决送达难题,说服严先生积极配合参与诉讼程序
涉外案件,送达几乎是每案面临的难题。本案辛女士与男方已在美国离婚多年,男方亦尚在美国生活,团队律师通过多次邮件、电话等多种方式尝试与严先生取得了联系,并成功说服其积极配合参与了全案审理过程。
3. Guide Ms.Xin on collecting required evidence and presenting related evidence as required by law
First, to make sure that the court in question recognizes a foreign judgment of divorce, and then, the applicant must submit the following documents as required by related laws to the court:
(1) A written application;
(2) The original divorce decree of the foreign court and its certified Chinese translation;
(3) The proof that the decision has taken effect issued by the original foreign court rendering the said decree if the divorce decree does not bear the date of effect or effectiveness information;
(4) Relevant supporting documents proving that the defendant had been legally summoned by the foreign court rendering the said divorce decree to attend the court if the plaintiff in the divorce case at the foreign court is the applicant in this case; and
(5) Where the defendant in the divorce case at the foreign court resides in China and is the applicant in this case, the divorce decree granted by the foreign court may be presumed to be true and effective provided that the applicant has the notice of response or summons issued by the foreign court.
3.指导辛女士搜集所需证据并按法定要求举证
首先,申请法院承认外国离婚判决,申请人依法需提交以下材料:
(1)书面申请书
(2)外国法院离婚判决书正本及经证明无误的中文译本;
(3)若外国法院离婚判决书未指明已生效或生效时间的,需提交作出判决的法院出具的判决已生效的证明文件;
(4)若外国法院离婚判决的原告为申请人的,另需提交作出判决的外国法院已合法传唤被告出庭的有关证明文件;
(5)若外国法院离婚判决的被告居住在国内且为申请人的,如能提交外国法院的应诉通知或出庭传票,可推定外国法院离婚判决书为真实和已经生效。
Furthermore, except for the written application, all the mentioned-above evidential materials should be official or certified documentary evidence produced outside the territory of China, and the divorce decree also involves the identity relation of the parties involved. Before, according to Article 16 of theProvisions by the Supreme People's Court on Evidence in Civil Procedures, the mentioned-above evidential materials should be certified by a notary office in the country involved or confirmed by applying the certification procedures as specified in relevant treaties concluded between the People's Republic of China and the country involved. The evidential documents relating to the identity relation between the parties involved should also be certified by a Chinese embassy or consulate in the country involved or confirmed by applying the certification procedures as specified in relevant treaties concluded between the People's Republic of China and the country involved.
其次,上述证据材料除书面申请外,均系中国领域外形成的公文书证,且离婚判决书还涉及身份关系,此前依据《民事诉讼证据若干规定》第16条,上述证据应当经所在国公证机关证明,或者履行中华人民共和国与该所在国订立的有关条约中规定的证明手续。涉及身份关系的证据,还需经中国驻该国使领馆认证,或者履行中华人民共和国与该所在国订立的有关条约中规定的证明手续。
But now, China has acceded to theConvention Abolishing the Requirement of Legalization for Foreign Public Documents(hereinafter referred to as the “Convention”), which has been effective in China since November 7, 2023, and the U.S. is also a party to it. Hence, under the Convention, the above-mentioned foreign divorce decrees and corresponding evidence materials need just to be notarized by a notary office of a contracting state, together with an additional certificate issued by competent authorities of the said contracting state (also known as the Apostille). They no longer need to be certified by the Chinese embassy or a Chinese consulate in the U.S.
但目前我国已加入《取消外国公文书认证要求的公约》,且该公约已于2023年11月7日在国内生效适用,美国亦为该公约缔约国,故依该公约,上述外国离婚判决书及相应证据材料,经该外国公证部门公证和该缔约国主管机关签发附加证明书即可(俗称“海牙认证”),之后就无需再经我国驻美国使领馆认证。
In this case, Ms.Xin’s foreign divorce decree bears no effective date or effectiveness information and she also can’t provide the proof that the divorce decision has taken effect issued by the original U.S. court. However, Ms.Xin lives in China and was the defendant in the divorce decree case. Therefore, providing that she has the summons to appear in court issued then by the foreign court, the Chinese court in this case can presume that the divorce decree is true and effective. Hence, under the guidance of our lawyers, Ms.Xin managed to obtain a summons for the court hearing in the U.S. and submitted it, together with its translation done by an authorized translation agency, to the Chinese court in this case.
具体到本案,辛女士的外国离婚判决书中并未记载已生效或者生效时间,其也无法提供法院出具的判决已生效的证明文件。但辛女士在国内生活且是该离婚判决书的被告,若能提供出庭应诉的传票,法院便可推定该判决书为真实且已生效。故在团队律师的指导下,辛女士获取到了在美国开庭应诉的传票,经专业翻译机构翻译后提交至法院。
As the expected date of confinement was coming on, Ms.Xin was eager to obtain the Chinese court’s recognition of the effectiveness of her divorce decree so as to register her upcoming marriage with her fiance in China. But just at this moment, the judge in charge required Ms.Xin to produce the procedures of Hague certification for the said U.S. summons, In accordance with Article 16 of theMinutes of the National Symposium on the Foreign-related Commercial and Maritime Trial Work of Courts, our lawyers persuaded the judge to exempt Ms.Xin from the Hague certification, subject to no objection to the authenticity of the summons from Ms.Xin and Mr. Yan, and soon the judge made a ruling in writing on recognizing the effectiveness of Ms.Xin’s U.S. divorce decree.
因辛女士已到预产期,急需法院尽快承认其美国离婚判决书的效力以便与未婚夫在国内办理结婚登记。但此时承办法官要求辛女士对上述美国的开庭传票提供海牙认证手续,团队律师依据《全国法院涉外商事海事审判工作座谈会会议纪要》第16条的规定,说服法官在辛女士和严先生对该传票真实性均无异议的情况下,免除了辛女士再对传票进行海牙认证的要求并很快为辛女士做出了认可其美国离婚判决书效力的裁定书。
[Lawyers' Reminders]
【律师提醒】
1. Do prepare and sort out your external evidence to be submitted to a Chinese court under the guidance of professional lawyers, and then apply for notarization and certification of your evidential documents to relevant authorities in the country where these documents have been produced. It not only helps reduce time and financial costs but also can avoid the possibility of a foreign divorce decree not being recognized by a Chinese court for the evidential form failing to meet legal requirements, thus affecting expected marriage registration or other needs.
1.向法院提交域外证据,一定要在专业律师的指导下,整理好完备的证据材料后再向文书形成国的相关部门申请公证及认证手续,这样可大量节约时间和经济成本,亦避免因证据不合法定形式要件导致外国离婚判决书不被中国法院认可,进而影响与他人登记结婚或者其他相关需求。
2. Due to various factors, such as the right of jurisdiction, service of process, the burden of proof, application of law and others, foreign-related cases are more difficult to handle than common civil ones, thus, posing a much higher demand on professionalism of lawyers. To achieve desired results, do go to these lawyers with rich experience in handling such cases for help to ensure that your claims will be satisfied more securely and quickly.
2.具备涉外因素的案件,因管辖、送达、举证、法律适用等问题,相较一般民事案件办理难度大,故对专业要求程度很高。为了实现好的案件结果,一定要寻求对此类案件有丰富办案经验的律师团队的帮助,以便更稳妥快速地达成诉求。
3. For a foreign divorce decree, it is advised to apply for the timely recognition of the said foreign divorce decree at a Chinese court. Otherwise, in the eye of China’s law, the divorced parties remain husband and wife, which will have you exposed to a series of legal risks. For example, you will be suspected of bigamy if you remarry in China, and the newly-added property of one party in such a situation will also be deemed as the joint property of the former husband and wife, etc.
3.在国外判决离婚后,有必要及时在国内法院申请承认国外离婚判决书的效力,否则在中国法律上双方仍是夫妻关系,面临一系列的法律风险,比如,再登记结婚会涉嫌重婚罪,一方的新增财产会被认定为夫妻双方的共同财产等等。
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