Marriage and Divorce
In the doctrine and practice of private international law,problems concerning marriage and divorce have attained special prominence.The domestic laws of various countries differ in these matters much more than in any other legal sphere.The rules relative to the conclusion,the conditions,the nullity,and the dissolution of marriage are so closely connected with morality,religion,and the fundamental principles prevailing in a given country that their application is often regarded as a matter of ordre public.It follows that the creation of a “harmony of laws,” which is one of the ultimate goals of private international law,is more difficult of achievement in questions of marriage and divorce than in any other branch of law.
In general terms,modern legislation concerning the choice-of-law issues of foreign marriage and divorce usually contains some common provisions,such as formal requirements of marriage,substantive requirements of marriage,personal and property effects of marriage,legal separation,divorce and same-sex marriage.
2.1 Marriage
Marriage usually means the legal union of a man and woman as husband and wife.[1]Prior to the enactment of the Conflicts Act,the most important provision regulating foreign marriage was prescribed by the GPCL.Structurally,the GPCL has devoted an entire chapter to regulating the conflict of laws (i.e.,Chapter VIII,Application of Law in Civil Relations with Foreign Elements),where a conflict rule for marriage is included.Article 147 provides that:2
The marriage of a citizen of the People’s Republic of China to a foreigner shall be bound by the law of the place where they get married,while a divorce shall be bound by the law of the place where a court hears the case.
Pursuant to this provision,it can be drawn that a marriage between a Chinese citizen and a foreigner within China shall be governed by Chinese law,while without by a foreign law; in other words,lex loci celebrationis governs this kind of marriage.It should be noted that this provision fails to draw a distinction between formal requirements and substantive requirements of marriage,thus it follows that both requirements by the place of celebration shall be satisfied simultaneously.In this respect,Chinese law differs widely from the general international practice,insofar as in most countries,the substantive requirements are governed by the personal law of the parties to the marriage (the lex patriae or lex domicilli).3 According to the interpretation of Chinese authority,Article 147 of the GPCL greatly simplifies the regulation and administration of international marriage.Not only does this rule make the task of marriage officials easier,as there is no need of ascertaining foreign law to determine the capacity of the foreign partner,it also facilitates the protection of the Chinese spouse by applying Chinese law to ensure that the foreign spouse meets the Chinese standards required for a sound marriage.[2]
Moreover,under the “Answer of the Ministry of Civil Affairs to Several Issues Concerning the Registration of Foreign Marriage” issued on December 9,1983,4 the parties should submit the documentations required by the “Provisions of Registration of Marriage between a Chinese and a Foreigner” when they apply for registration.In the meantime,in order to guarantee the universal validity of marriages celebrated in China,the parties are requested to produce the provisions of the foreign party’s home country to prove that they are also permitted to register there.Besides,this administrative regulation provides that on the basis of conventions or reciprocity,China recognizes the validity of the marriages between two foreign citizens of the same nationality which are celebrated before the consular of their home country either in the Embassy or Consulate to China as an exception to the rule of lex loci celebrationis inferred from Article 147 of the GPCL.5
Though the conflict rules before 2010 were silent when a marriage between two foreigners takes place in China,these marriages,in most Chinese scholars’ arguments,are also governed by lex loci celebrationis deducing from Article 147 of the GPCL.It needs mentioning that,in practice,Chinese authorities do show some degree of flexibility,however,with respect to certain substantive requirements,such as age and consanguinity,and they may make reference to the personal law of the parties as long as this is not inconsistent with China’s basic principles of the law on marriage.
With regard to the marriage between two Chinese citizens outside China,it may refer to “Some Provisions on the Issues Related to the Marriage of the Overseas Chinese for the Chinese Embassies and Consulates” jointly issued by the Ministry of Foreign Affairs,the Supreme People’s Court,the Ministry of Civil Affairs,the Ministry of Justice and the Overseas Chinese Office of the State Council.6 Under this document,when dealing with marriages falling into this category,Chinese Embassies and Consulates should strictly follow the basic spirit of Chinese Marriage Act,with due consideration to practical situations of the parties where they live.The following is a case in point.
Wei Wang (male,aged 21) and Li Zhang (female,aged 19) decided to marry who were both Chinese citizens and domiciliaries.However,their application was refused by the marriage registrar on the ground that the parties failed to satisfy the minimum age requirement provided by Chinese Marriage Act.[3]Soon afterwards,they participated in a tour group to Thailand organized by a travel agency where they went through a local religious ceremony of marriage valid under the domestic law of Thailand.After returning to China,they lived together as spouses.In the following year,unfortunately,Wei Wang died in a car accident,and disputes arose around the succession of Wang’s estate between Li Zhang on one part and Wang’s relatives on the other.Zhang believed that she was entitled to succeed as one of Wang’s hereditary successors; however,the relatives of Wang argued otherwise.They submitted that Zhang and Wang failed to conclude their marriage before the Chinese Marriage Registration Authority because of nonage; therefore,their marriage was not valid,and that Zhang was not Wang’s hereditary successor accordingly.The arguments of the relatives of Wang were upheld by the Court on the ground that Zhang and Wang’s celebration of marriage in Thailand pursuant to the local religious ceremony constituted an evasion of Chinese law,or to be more specific,Article 147 of the GPCL.Hence,the court held that the alleged marriage was invalid,and Zhang was barred from succeeding.
We do not favor such a view,since Article 147 of the GPCL stipulates but the marriage of a citizen of the People’s Republic of China to a foreigner,while the case in hand concerned the marriage between two Chinese citizens.In other words,Article 147 of the GPCL is not applicable to the present case.In the author’s view,as minimum age requirement provided by Chinese Marriage Act is compulsory for Chinese citizens,the Court may reject the validity of the alleged marriage directly under the Chinese law,instead of by invoking the doctrine of invasion of conflict-of-law rule.Therefore,the author believes that there existed a mistake of the application of law in this case.
Unlike Article 147 of the GPCL which lumps formal and essential validity of marriage together,the Conflicts Act distinguishes the former from the latter.Issues of essential validity of marriage are reflected in Article 21 as follows:
The law of the place where the parties have common habitual residence shall apply to essential validity of marriage; In the absence of such common habitual residence,the common national law of the parties shall apply; In the absence of both,the lex loci celebrationis shall apply provided that the marriage is celebrated in the place where one party has habitual residence or in the country of which one party has nationality.
From the expression of the above article,it follows that the law of the parties’ common habitual residence or common national law shall prevail over lex loci celebrationis if only the spouses have such common habitual residence or common nationality.The legislative policy of this article is clear: preventing the prospective spouses to contract an unassailable marriage in a haven jurisdiction.Such consideration,undoubtedly,is intelligible; nevertheless,a close examination of the article will reveal a problem: if the parties have neither common habitual residence nor common nationality,and their marriage is celebrated in neither the place where one party has habitual residence nor the country of which one party has nationality,what law governs the substantive requirements of their marriage? In such a situation,the only solution seems to refer to Article 2(2) which reflects the principle of closest connection; nonetheless,this would lead to too much uncertainty in practice.
Article 22 provides the formal requirements of marriage under which a marriage is valid as long as its form complies with the lex loci celebrationis,or the national law or the law of the habitual residence of either party.The alternative reference rule found in this article expresses a pronounced legislative policy of preserving family which reflects the international trend of favor matrimonii.
2.2 Divorce
Divorce usually means the termination of a valid marriage other than by death.With regard to the application of law in respect of divorce,prior to the Conflicts Act,“Guidelines in Trial Implementation of the Supreme People’s Court on Implementing the General Principles of Civil Law” provides a more detailed provision than Article 147 of the GPCL,as Article188 stipulates as follows:
The divorce case involving a foreign national,divorce and partition caused by divorce accepted by the People’s Court in this country are governed by the law of this country.The determination of the validity of the marriage is governed by the law of the place where a marriage is registered.
The above provision,together with Article 147 of the GPCL,shows that once Chinese courts deem themselves possess the jurisdiction over divorce actions,they will always apply Chinese domestic law with the exception of determining the validity of the marriage,which is governed by lex loci celebrationis.(https://www.daowen.com)
With regard to divorce,the Conflicts Act distinguishes divorce by agreement (or divorce registration) from divorce by litigation.7 In case of divorce by agreement,[4]the parties may choose a governing law by agreement between the law of habitual residence and the national law of either party; in the absence of such choice,the law of the parties’ common habitual residence shall apply; in the absence of common habitual residence,the common national law of the parties shall apply; in the absence of both,the law of the place where the parties go through the divorce procedures shall apply.In case of divorce by litigation,[5]the lex fori shall apply.
Let’s now examine a typical case.Huashi Wang (Male) and Chunhua Fu (Female) are Chinese nationals.8 They married in Beijing in 1987 and had a son in 1989.Huashi Wang left China alone for the United States to study in 1990 and graduated with a PhD six years later.After graduation,Wang was employed by a Canadian company in Ontario.In August 1997,Wang petitioned a Canadian court for divorce on the ground of long separation,deliberately concealing the fact that he had a son in Beijing.The Canadian court approved Wang’s petition which was soon served on Fu via mail by Wang’s counsel.Fu ignored the service of process,and commenced divorce proceedings before a Chinese court in Beijing and went on to petition the court to make a maintenance order against Wang for the support of the child in addition to the divorce decree.Because of Wang’s failure to appear in court,the Chinese court granted a divorce decree by default and made an order for periodical payments imposed upon Wang of 350 Yuan (RMB) per month for the support of the child.Almost in the meantime,Wang obtained a divorce decree from the Canadian court by default.
The crucial issue presented here is whether the Chinese court has jurisdiction over the case in hand,since Wang has commenced proceedings over a similar cause of action (i.e.,divorce) in Canada prior to Fu’s petition in China; that is to say,the present case concerns the problem of parallel proceedings.Generally speaking,most countries do not favor international parallel proceedings; however,in reality,parallel proceedings are not prohibited strictly in international civil litigation.9 Therefore,the author believes that if Chinese law does not prohibit parallel proceedings,the jurisdiction of the Chinese court over the present case is defensible.So now let’s examine the relevant provisions of Chinese law.
Promulgated on April 9,1991,revised on October 28,2007 and August 31,2012 respectively,the Civil Procedure Law of the People’s Republic of China stipulates the jurisdiction concerning personal status,as provided in Article 21 and 22:
A civil lawsuit brought against a citizen shall be under the jurisdiction of the People’s Court of the place where the defendant has his domicile; if the place of the defendant’s domicile is different from that of his habitual residence,the lawsuit shall be under the jurisdiction of the People’s Court of the place of his habitual residence.
A civil action brought against a legal person or any other organization shall be under the jurisdiction of the People’s Court of the place where the defendant has his domicile.
Where the domiciles or habitual residences of several defendants in the same lawsuit are in the areas under the jurisdiction of two or more People’s Courts,all of those People’s Courts shall have jurisdiction over the action.
The following civil actions shall be under the jurisdiction of the people's court at the place of domicile of the plaintiff; or if the plaintiff's place of domicile is different from his or her place of habitual residence,the civil actions shall be under the jurisdiction of the people's court at the place of habitual residence of the plaintiff:
(1) An action regarding a personal relationship instituted against a person who does not reside within the territory of the People's Republic of China.
(2) An action regarding a personal relationship instituted against a person whose whereabouts is unknown or against a person who has been declared missing.
(3) An action instituted against a person who is subject to any compulsory correctional measure.
(4) An action instituted against a person who is incarcerated.
From the above provisions,we can conclude that China generally follows the territorial principle of “the plaintiff submitting to the defendant” when dealing with the civil actions as provided in Article 21; however,under some special circumstances,it is the plaintiff’s habitual residence that prevails as provided in Article 22.To be more specific,paragraph 2 of Article 22 is applicable in the present case.
Furthermore,on July 14,1992,the Supreme People’s Court issued the “Opinion on the Application of the Civil Procedure Law” that provides a more detailed provision,as Article 15 stipulates as follows:10
The People’s Court in the place of domicile of the party residing at home may control over the divorce action in which one party of Chinese citizens is living abroad and the other party is living at home.In the event that the party living at broad files an action with the court of the state of residence and the party living at home files an action with the People’s Court,then the People’s Court that accepts the case is entitled to control over the divorce case.[6]
Taking the above provisions into consideration,the Chinese trial judge held that the Court had jurisdiction to entertain Fu’s cross-petition for divorce,and applied the Chinese law pursuant to Article 147 of the GPCL,and therefore,pronounced the decree in favor of the plaintiff.
However,it should be noted that the plaintiff could hardly benefit from the decree though she won the suit,insofar as scarcely can the Chinese judgment be recognized and enforced in Canada.Therefore,in practical terms,we suggested that Fu applied to the Chinese court for a maintenance order against Wang instead of a divorce petition.Differently expressed,if the Chinese court recognized the divorce judgment rendered by the Canadian court and granted but a maintenance order,the interests of Fu and her son could have been protected better,since this order would be much easier to be recognized and enforced in Canada.
It merits emphasis that in family disputes involving its own nationals,the Chinese courts tend to apply its domestic law for the sake of protecting the interests of its own nationals.Nonetheless,the author argues that international comity,respect for the jurisdiction of courts of other states and due deference to pending or final proceedings over the same cause of action abroad are necessary for the smooth corporation of international civil and commercial justice.Therefore,recognition of the finality and validity of previous foreign judgments may under many circumstances serve to maximize the interests of private parties without impairing the judicial sovereignty of states.By the same token,the author submits that the articles mentioned above,though helpful to expand the jurisdiction of Chinese courts,may not realize their original purpose in judicial practice.