Foreign divorce judgments must be applied for recognition in China

 2019-12-03  283

Mr. Wang and his wife, Ms. Li, are married in Spain . They met each other in Spain while they were studying there. But after returning to China, they decided to divorce. Mr. Wang applied to divorce in Jinshan district people's court in Shanghai (hereinafter referred to as the Shanghai Jinshan court) and demanded a divorce from Ms. Li.



Q: Isn't marriage only available in the Civil Affairs Bureau?Is the marriage certificate received at a Chinese consulate abroad valid?

A: according to the Vienna Convention on Consular Relations, bilateral Consular treaties between China and foreign countries and the regulations on marriage registration, Chinese embassies and consulates of the people's Republic of China may register marriages for Chinese citizens of both sexes residing in the country of residence.The validity of a consular marriage is the same as that of a marriage registered in the Civil Administration of the country, and a legally valid marriage certificate can be obtained.


After receiving a summons from the court, Ms. Lee was annoyed that she had come to the court before the hearing and handed over to the presiding judge a copy of the judgment handed down by the court of Barcelona, Spain, with the original Spanish and Chinese translation.

It turned out that Mr. Wang and Ms. Li had already filed for divorce in a Spanish court, the Spanish court had also dissolved the marriage relationship, and their daughter lived with Ms. Li, the Spanish court also agreed to visit time and maintenance costs.


Ms. Li held that the Shanghai Jinshan court had no jurisdiction over the case and that the marriage relationship had been legally dissolved and that the Shanghai Jinshan court had been requested to recognize and enforce the effective judgment of the Spanish court.


Q: Does China recognize foreign courts ' effective judgments?

A: with regard to the recognition and enforcement of legal instruments already in force in foreign courts, the Civil Procedure Code contains procedures specifically provided for.


The parties concerned may apply to the Intermediate People's Court, which has jurisdiction over the case, for recognition and enforcement. the Intermediate People's court, in accordance with the treaties on judicial assistance or the principle of reciprocity concluded between China and foreign countries and the provisions of the Chinese law, shall examine them in accordance with the law and recognize the validity of the judgment in force of the foreign state without violating the basic principles of Chinese law or the national sovereignty, security and social and public interests.


Q: Is there a mutual legal assistance treaty between China and Spain?

The treaty between the people's Republic of China and the kingdom of Spain on mutual legal assistance in civil and commercial matters concluded between China and Spain stipulates that where a legally effective judgement rendered by a Spanish court requires recognition and enforcement by the state, the parties apply directly to the court of competent jurisdiction.

As long as the legal procedure is followed, the effective judgment obtained by a Chinese citizen in a foreign court can also take effect in our country after examination by an Intermediate People's court with jurisdiction.Can Ms. Lee's application be upheld by the court?


Because Ms. Li is in the process of hearing divorce cases in the grass-roots Court, apply for recognition of the entry into force of the judgment of the Spanish court, and the grass-roots Court is not competent to jurisdiction such application, so the Shanghai Jinshan court according to the law to transfer this application to the First Intermediate People's courtThe Shanghai court rejected Ms. Li's application and requested the Shanghai Jinshan court to proceed with the case.


Q: Why did the Shanghai No. 1 Middle School reject Ms. Li's application?

There are exceptions to the rule that a party may apply for recognition of a foreign court's effective judgment at any time.


In accordance with the provisions of the Supreme People's Court on the application of Chinese citizens for recognition of divorce judgments made by foreign courts, Article 18, where, after accepting the divorce proceedings, a party to the people's court has otherwise made an application for recognition of a foreign divorce judgment, its application shall not be accepted.


Ms. Li's case is in line with the article, Ms. Li in return did not timely to the Middle court to apply for recognition of the divorce judgment of the Spanish court, but after Mr. Wang to the Jinshan court filed divorce proceedings before the application, so the court shall not accept Ms. Li's application.


Q: Can the Shanghai Jinshan court continue to hear the divorce case?

The answer is yes, because Ms. Li's application was rejected by the Chinese court, it means that the divorce judgment of the Spanish court brought by Ms. Li did not have legal effect in our country, that is to say, Mr. Wang and Ms. Li are still husband and wife in China, and did not dissolve the marriage.


Shanghai Jinshan court according to the law on the marriage relationship between the two people and the custody of the legitimate daughter of the trial.


Although the decision of the Spanish court has no legal effect in our country, the court of Shanghai Jinshan has fully respected the decision of the Spanish court in the process of trial, based on the law and the situation of our country. The court finally considered that the divorce was granted in given the consent of both parties.


Ms. Li's economic conditions and free time are better than Mr. Wang's, so the children still live with Ms. Li.At the same time, the court noted that the Spanish court had decided that the cost of alimony was much higher than that of Mr. Wang due to the higher economic conditions and the higher standard of living in Spain than in Shanghai.And after the full mediation of the judge, Ms. Li promised the court in writing not to set obstacles to Mr. Wang's visiting rights, and the case was finally resolved satisfactorily.


With the extension of the”Belt and Road " strategy and the deepening of International Economic Cooperation, the probability of Chinese citizens and enterprises involved in foreign litigation is also increasing.


Shanghai Nuo Di Law Firm reminds that the effective judgment of a foreign court is not directly legally effective in our country, but requires the parties to time to have jurisdiction Intermediate People's court to recognize and execute the application.