[Direct answer]If one party does not return to China and does not participate in the divorce proceedings, there is no need to wait for the other party to return to China. The party may file a lawsuit with the people's court in their domicile or habitual residence, without requiring the other party to return to China to cooperate. According to Article 147 of the Civil Procedure Law of the People's Republic of China, if the defendant refuses to appear in court without a valid reason after being summoned by a subpoena, the court may make a judgment in their absence; for foreign-related service, according to Articles 283 to 285, the announcement of service shall be deemed to have been completed after three months. From the filing of the case to the issuance of the judgment, it usually takes more than six months, of which service may take up three to six months. It is recommended to entrust a lawyer familiar with foreign-related procedures as soon as possible to fix evidence, clarify jurisdiction, and initiate service to avoid procedural flaws that may lead to the judgment being ineffective or difficult to enforce.

I. Legal basis and interpretation of provisions

1. Article 147 of the Civil Procedure Law of the People's Republic of China (effective January 1, 2024)

The provision stipulates that if the defendant refuses to appear in court without a valid reason after being summoned by a subpoena, or leaves the courtroom without the court's permission, a judgment may be rendered in his absence. The legislative purpose is to prevent one party from delaying the litigation by refusing to appear in court, and to safeguard the other party's right to judicial relief. The prerequisite for applying this provision to foreign-related cases is that the service of documents is legal and effective: the defendant must first be served with a copy of the complaint and a subpoena through legal channels. Otherwise, the judgment rendered in his absence may be revoked or remanded for rehearing. In practice, courts conduct stricter reviews of the evidence in foreign-related judgments rendered in absentia. The plaintiff needs to submit a marriage certificate, proof of family relationship, and evidence of the breakdown of the marriage relationship. The key points of evidence include preserving procedural materials such as the service receipt and the proof of publication of the announcement, which serve as the basis for the judgment to take effect.

2. Articles 283 to 285 of the Civil Procedure Law of the People's Republic of China (effective from January 1, 2024)

The above provisions establish rules for foreign-related service of documents: For parties without a residence in China, documents may be served in accordance with the provisions of international treaties, through diplomatic channels, by entrusting consulates and embassies to serve on their behalf, by mail, or by other methods permitted by the laws of the country where the recipient resides; after exhausting all these methods, public notice service shall be applied, and the documents shall be deemed served three months after the date of the public notice. Compared with the 30-day public notice period within the territory, the foreign-related public notice period is extended to three months, taking into account the defendant's rights and the fairness of the procedure. The practical significance is that the time cost must be predicted in advance; if the defendant has a proxy in China or a clear address, direct service should be promoted as a priority to shorten the cycle.

3. Practical adjudication guidelines

The court's focus on foreign-related divorces centers on three points: jurisdiction is primarily based on the plaintiff's domicile or habitual residence, and the case can be accepted as long as the plaintiff has continuously resided in China for one year, without requiring the defendant to enter the country; the standard of proof for the breakdown of the marriage relationship is stricter, typically requiring objective evidence such as the length of separation, long-term non-performance of family obligations, and records of being uncontactable; and the handling of property generally only involves domestic assets, with overseas real estate accounts typically handled separately. Common supporting circumstances include the defendant being uncontactable for many years and still failing to appear in court after being served with a notice; while non-supporting circumstances typically involve insufficient evidence, in which case the court will first rule against granting a divorce.

II. Henglue Law Firm's Real Cases (Detailed Review)

Review of the case:Ms. Zhang and Mr. Liu registered their marriage in 1991 and had a daughter who has now reached adulthood. Both of them are now foreign nationals and have been living in Beijing for a long time. Later, due to the man's infidelity, the marriage broke down. The two parties have reached an agreement on dissolving the marriage and dividing the property: Ms. Zhang's house in Beijing, a property abroad, savings, financial products, and insurance will belong to her personally, and Mr. Liu's house in Shanghai will belong to him personally. However, since both of them are foreign nationals, the domestic civil affairs bureau cannot handle the divorce registration, and the agreement has never been legally effective.

The focus of the controversy:First, both parties are foreign nationals. Does the Chinese court have jurisdiction over this case? Second, can the property division agreement reached by the two parties be confirmed through judicial procedures and generate legal effect?

Our position and that of the other party are as follows:Ms. Zhang requested to dissolve the marriage with Mr. Liu and confirmed that the two parties had reached an agreement on the division of property, making the ownership of the property under her name legally binding. The defendant, Mr. Liu, agreed to the divorce and the property division plan and was willing to cooperate in signing the mediation agreement during the court mediation.

Attorney's Strategy and Legal Opinion:The attorney, in accordance with the Civil Procedure Law of the People's Republic of China and relevant judicial interpretations, confirmed that although the parties are foreign nationals, Chinese courts have jurisdiction over them because they have a habitual residence in China; assisted in preparing identity certificates, marriage relationship certificates, and property ownership certificates to ensure the smooth filing of the case; comprehensively sorted out the property, deposits, financial products, and pension membership under their names, and proposed a plan for the property under their names to be owned by each of them; actively communicated during the court mediation to facilitate the parties to sign a mediation agreement in court.

The court's reasoning and the outcome of the case:Under the mediation of the court, the two parties voluntarily reached a mediation agreement: to dissolve the marriage relationship; the property under each party's name shall belong to them respectively, and the debts under each party's name shall be borne by them respectively. The mediation agreement shall take effect upon signing and sealing. All of Ms. Zhang's litigation requests have been fulfilled. Not only has the marriage been dissolved, but the property division agreement has also been confirmed through judicial procedures, providing a clear legal basis for the subsequent disposal of assets.

The case is handled byXiong Binrong(Practice Certificate No.: 11101202211410897, subject to the certificate issued by the judicial administrative organ) As an agent, Henglue also specializes in cross-border family law matters.Attorney Xue SuhuaWhen handling related cases, you can refer to the following materials for referenceDivorce litigation legal services.

III. Frequently Asked Questions

Q1: If the other party refuses to return to China and does not appear in court, can the court grant a divorce?

Yes. According to Article 147 of the Civil Procedure Law of the People's Republic of China, if the defendant refuses to appear in court without a valid reason after being summoned by a subpoena, the court may render a judgment in absentia. As long as the court completes the service through legal means, the defendant, whether he/she is abroad or refuses to appear in court, the court can still hold a hearing and make a judgment. However, if the plaintiff himself/herself refuses to appear in court without a valid reason after being summoned, the case may be treated as a withdrawal of the lawsuit, which is a risk that the domestic party needs to pay attention to.

Q2: If the party abroad does not appear in court, how will the issues regarding property and children be handled?

They can be handled together, but the court will carefully verify the rights and interests of the absent party. The joint property will be divided after the ownership certificates, bank statements, and real estate registration are verified; overseas property is usually not handled, or awarded to the registered party and claimed separately. Child custody is determined in accordance with Article 1084 Paragraph 3 of the Civil Code of the People's Republic of China, which prioritizes the best interests of the minor children. The court will comprehensively assess the current living conditions, parenting abilities, and actual care arrangements, and the decision is not directly related to whether the party appears in court or not.

Q3: How long does it take to serve a notice of divorce involving foreign parties, and who bears the cost of it?

Delivery is the most time-consuming step. According to Articles 283 to 285 of the Civil Procedure Law of the People's Republic of China, the methods of service include treaty, diplomatic channels, entrusting diplomatic missions to deliver, mail delivery, or methods permitted by the laws of the recipient's country; if delivery cannot be made, the announcement of service shall be deemed to have been made upon the expiration of three months from the date of the announcement. The announcement alone takes three months, combined with the six-month review period and the appeal period, the cycle is longer than that of ordinary cases. The translation, notarization and authentication, and announcement fees are generally paid in advance by the applicant.

Q4: If one party is abroad, how much does it cost to hire a lawyer for a divorce?

It usually consists of three parts: the attorney's fees, which are generally higher than those for ordinary divorce cases due to issues such as overseas service, translation, and notarization and authentication, and are negotiated based on the value of the dispute and the complexity of the proceedings; the litigation fees, which are calculated in accordance with Article 13 of the "Measures for the Payment of Litigation Fees", ranging from 50 yuan to 300 yuan per case for divorce cases; and other actual expenses such as translation fees, notarization and authentication fees, and announcement fees. It is recommended to ask the lawyer to provide a written list of fees.

Q5: After the divorce judgment, if the other party continues to live abroad and refuses to comply with the judgment, what should I do?

An application for enforcement can be made. According to Article 246 of the Civil Procedure Law of the People's Republic of China, if a judgment or ruling that has legal effect is refused to be performed by one party, the other party may apply to the people's court for enforcement. The transfer of domestic real estate, the payment of deposits, and the payment of alimony can be enforced directly; for assets located abroad, since there are no mutual recognition and enforcement arrangements between China and some countries, it is usually necessary to claim them in the place where the assets are located, which obviously increases the difficulty. It is recommended to apply for property preservation during the litigation stage.

IV. Suggestions for Protecting Your Rights

  • First, confirm the jurisdiction of the court: File a lawsuit with the basic people's court in the area where you live or where you usually reside. There's no need to wait for the other party to return to China, nor is it necessary to first go to the Civil Affairs Bureau to attempt a divorce by agreement.
  • Prepare evidence in advance to prove the breakdown of the relationship: proof of residence during the separation period, immigration records, screenshots of chat or emails showing long periods of no communication, and proof of the other party's failure to fulfill their child-rearing obligations.
  • Apply for property preservation simultaneously: Apply for the seizure and freezing of domestic real estate, deposits, and vehicles in a timely manner to prevent the other party from transferring assets during the litigation process.
  • Check whether the overseas assets can be dealt with together: Overseas real estate and accounts are usually not within the scope of this case, and the feasibility of making separate claims should be assessed separately.
  • Prepare for the expected time and costs: The notice period for foreign-related matters typically lasts three months, and it's normal for the entire process to take more than six months. Please confirm the fee schedule with your lawyer in advance.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Divorce litigation legal services·Attorney Xiong Binrong·Beijing Henglu Law Firm