His/Her Cheating Might Be the Least of Your Worries

As was widely reported last week, a Shandong court ruled that infidelity alone was not grounds for divorce. The ruling stated “When a married person is caught cheating, their behavior is not cohabitation as long as they do not live with the lover for a long, steady period, so their spouses cannot file for divorce for this reason. Furthermore, they cannot use adultery as the reason to request compensation for damages.”

This raised a lot of questions within the expat community about what, if any effect, it could have on relationships between foreigners and Chinese citizens. A deep dive down a legal rabbit hole left us feeling illiterate and useless so we sought out an expert. Edgar Choi is an attorney with Liangma Law Firm, an author with Tsinghua University Press, and the administrator of the WeChat group Law In A Min 24. He kindly answered all our questions in a way that didn’t make us feel like we had wasted money on a degree.

In general, What are some of the challenges that an expat and a Chinese national might face during the divorce process in China?

Court is mandatory: Cross-country couples that are married abroad must go through the court in order to get a divorce. Unlike a marriage between two Chinese citizens, who may simply sign a divorce agreement and get divorced in 30 days, marriages that involve one expat, or two expats require litigation. This means, even if both parties fully agree on getting a divorce and have it in writing, they must go to court nevertheless. Cross-Country Couples that are married in China may get divorced by agreement however.
Language Barrier: Trials in China are carried out in Chinese, not English, Spanish, French, Russian, etc. This means if an expat does not speak fluent Chinese, a translator will be needed. The court may provide you a translator at your expense if you cannot come up with one. Unlike other civil lawsuits like contractual disputes or labor disputes, both parties are legally required to appear in court as the judge will want to ask questions in order to understand why both parties want a divorce.
Time: In China, we have a saying that translates to: ‘We would rather demolish a temple than to divorce a couple.’ It is deeply embedded in Chinese culture that marriages are sacred, and all couples go through quarrels. Therefore, judges usually rule on not granting a divorce at the court of first instance. Once this ruling is effective, you must wait at least six months before filing for divorce again. Normally, it takes around six months to get a trial date after submitting for divorce, so 6+6+6 equals 18 months, and that is the time you must consider when filing for a divorce.
Cost: I would highly recommend expats to hire a bilingual divorce lawyer, or at least a translator + Chinese-only lawyer when it comes to having a lawsuit, even in your home country. You will be at a great disadvantage if the other party hires a lawyer and you don’t. Bilingual divorce lawyers are rare in China, and scarcity means high prices. You will be looking at a five-digit number for a simple divorce case, and even a six-digit number if there is property to be divided, like an apartment and custody issues.
Traveling expenses: If you are in a city like Beijing, Shanghai, or Shenzhen, there is a chance that your wife’s hukou isn’t from this city, but from another province. If she hasn’t been in this city for more than two consecutive years, you might have to sue her in her hometown. The Beijing court might decide to not accept the case, or even if they accept it, they may kick it to your wife’s hometown court citing jurisdiction issues.

What are the laws surrounding children that may have resulted from this union?
A few factors are considered when granting custody of children, and the age of the child is an important factor.

Under 2: Mothers are usually granted custody to children under 2, due to breastfeeding issues. However, if both parties agree that the father shall be responsible for taking care of the child, the court will respect both parties’ wishes.
2-8: Financial situations and free time shall be determining factors in this case. The court will grant the father custody if:
- Father has been sterilized/is infertile.
- The child has lived with the father for most of the time, and it will harm the child’s growth if the mother is granted custody.
- The Father has no other children, while the mother has other children.
- The Mother is mentally/physically ill, has drug, alcohol, domestic violence, or gambling problems.
Above 8: The child’s choice will be the main determining factor. The court respects the child’s choice here as he is old enough to determine whether he wants to be with mama or papa.

The Chinese court ruled infidelity is not grounds for a divorce. But if infidelity is grounds for dissolution in the expats’ home country, can they file there?
Article 1079 of the Civil Code specifies that if one spouse commits bigamy or cohabitates with another person, the court will grant a divorce. Moreover, Article 1091 stipulates that the no-fault party may claim compensation if the other party commits bigamy. In fact, bigamy is a criminal offense that carries a two-year sentence.

However, in reality, if there is infidelity in the expat’s home country, it may be hard for the other party to gather evidence, as overseas evidence may not be recognized by a court in China due to the difficulty in proving the validity of that evidence. Photos can be photoshopped, videos can be deep fakes, audio recordings can be doctored. Hence, the evidence must go under a procedure called notarization before it can be used in court.

Would a divorce from a foreign governing body be seen as legitimate in China?
China will not recognize such divorce ruling under these four circumstances:

The verdict is not valid yet.
The foreign court has no jurisdiction over the case.
The judgment was made in the absence of the defendant and without legal summons.
The Chinese court is hearing or has made a judgment, or the divorce judgment made by the court of a third country has been recognized by the Chinese court.

Nevertheless, if you want China to recognize a ruling made by a foreign court, you must submit in writing such claims to a city-level court, also called a middle-level court.

Do you think this ruling will have any effects on marriage rates? Are people more likely to think twice about saying “I do”?
Objectively speaking, the marriage rate in China has been on a steady decline for the past eight years. In 2013, there were 13 million newly-weds, with a marriage rate of 9.9 percent. In 2020, only 8 million with a rate of 5.8 percent. 8 million is the population of Hong Kong and it is a shockingly low number. It is clear that people are reluctant to get married and have children. In fact, I am in no rush to get married within 15 years either. My generation faces problems like an overpriced real estate industry which deters us from getting married. Having at least one property is basically a must when it comes to getting married. Moreover, the cost of raising a child has increased substantially when compared to my parent’s generation. I will definitely give a lot of thought and write up a sound pre-nuptial agreement before getting married.

To get all your own headache-inducing legal questions answered you can contact Choi through his email, edgarwlchoi@law-lm.com, or via WeChat using the QR Code below.