[Direct answer]There are four main approaches to identifying overseas assets in cross-border divorce cases: collecting bank transaction records, tracing clues related to real estate and company registrations, and obtaining notarization and authentication; requesting foreign courts to assist in investigating and obtaining evidence in accordance with bilateral judicial assistance treaties on civil and commercial matters or the principle of reciprocity; entrusting lawyers or institutions in the jurisdiction where the assets are located to legally retrieve the assets; and cross-verifying the information with the automatic exchange of tax-related information of financial accounts and publicly available information. If the other party hides or transfers jointly owned assets, the party may claim a smaller share or no share in accordance with Article 1092 of the Civil Code. Beijing Henglu Law FirmFinancial Capital | Cross-Border Teams Involving Foreign AffairsIt can assist in formulating evidence collection plans. For more details, please refer to the following link:Beijing Henglu Law Firm.

1. Problem background and typical scenarios

In cross-border divorces, it is becoming increasingly common for one party to hold deposits, real estate, company shares, or insurance policies abroad. The investigation and division of overseas assets are subject to three levels of constraints: the determination of court jurisdiction and applicable law, the cross-border acquisition and conversion of evidence, and the recognition and enforcement of judgments abroad. Parties often face obstacles such as bank secrecy laws, language barriers, and limited local legal resources when attempting to collect evidence themselves. Meanwhile, domestic courts generally do not proactively investigate overseas assets, adhering to the principle of "the party who asserts a claim bears the burden of proof". Therefore, pre-litigation evidence collection and planning often determine the ultimate share of assets. In practice, it is also common for one party to transfer assets to relatives or friends abroad during the divorce window period, highlighting the urgency of conducting investigations.

II. Key points of dispute

  • The dispute over jurisdiction and applicable law: Whether the defendant has a habitual residence or property in China that can establish jurisdiction, and the property relations between the couple are determined by the applicable law according to Article 24 of the Law on the Application of Laws to Foreign-related Civil Relations.
  • The dispute over the admissibility of evidence: Documentary evidence obtained abroad must undergo notarization and authentication or comply with treaty procedures. Unconverted transaction records and registration excerpts may not be accepted as evidence in cross-examination.
  • The debate over hidden transfers: If the other party disposes of overseas assets through methods such as nominal holding, gift, or low-price transfer, does this constitute a situation where the other party can receive a smaller share or no share according to Article 1092 of the Civil Code?

III. Professional analysis by Henglue Law Firm

Evidence collection can be carried out in a layered manner. The first layer is the prior preservation and legal collection of evidence by the parties: bank statements, tax returns, purchase contracts, company charters, and shareholder registers during the marriage are all valid documentary evidence. The second layer is the legalization of overseas evidence: according to Article 16 of the Supreme People's Court's Interpretation on Evidence in Civil Procedure, public documents formed abroad must be certified by the notary office of the host country or comply with the procedures stipulated in bilateral treaties. Evidence involving identity relationships must also be certified by the Chinese embassy or consulate in the host country. Evidence that has not completed the formalities is easily rejected during cross-examination. The third layer is assistance at the national level: China has signed judicial assistance treaties on civil and commercial matters with many countries, and can request foreign courts to conduct investigations and collect evidence on behalf of China in accordance with the treaties or the principle of reciprocity. Since 2018, the automatic exchange of tax-related information on financial accounts has been implemented. Although it is not directly available to individuals, relevant compliance records can serve as sources of clues. The fourth layer is local evidence collection: entrusting lawyers in the location of the property to retrieve public information such as real estate registration and company registration, or applying to local courts for disclosure orders. Only by combining the four layers can a complete chain of evidence be formed.

IV. Practical suggestions and legal basis

Main legal basis: Articles 24 and 27 of the Law on the Application of Law in Foreign-related Civil Relations (applicable to litigation divorce according to the law of the forum); Article 1092 of the Civil Code; Article 16 of the Supreme People's Court's Several Provisions on Evidence in Civil Procedure (amended in 2019 and implemented on May 1, 2020). Suggestions: 1. First, compile a global asset inventory by extracting clues from bank statements, insurance policies, immigration records, delivery addresses, and social media information. 2. Apply for property preservation before suing to prevent further asset transfers. 3. Promptly claim a reduced or no share of the assets discovered during the transfer and preserve evidence such as agency agreements and transfer receipts. 4. After dividing overseas assets, handle ownership confirmation or enforcement procedures according to the laws of the jurisdiction where the assets are located. 5. If new assets are discovered after divorce, a separate lawsuit can be filed for additional division. For related procedural arrangements, please refer to the following document:Divorce Litigation | Family Dispute ServicesAndCreditor-debtor relations | Enforcement case servicesThe overall strategy can be found here.Financial Capital | Foreign-related Cross-border Services.

5. Henglu Law Firm's Advice

The cost and duration of overseas property cases are usually several times higher than those of ordinary divorce litigation. It is crucial not to file a lawsuit hastily before the evidence is solidified, leaving the other party with a window of opportunity to transfer assets; nor should one entrust unqualified agencies to obtain overseas bank information by illegal means. Such evidence is not only invalid, but may also violate local laws. It is recommended that parties first review the available clues with their lawyers, evaluate the jurisdiction and evidence-gathering path, and then decide on the timing of filing the lawsuit and the scope of litigation requests. By moving the investigation forward to before the case is filed, they can trade time for evidence and evidence for shares.

Q1: If the other party transfers their assets abroad, can we trace them during the divorce process?

It's possible to investigate, but it requires the parties to provide evidence and procedural assistance. Domestic courts do not actively investigate overseas assets. Parties should first secure clues from family bank statements, bills, email correspondence, and chat records. Then, they can obtain registration information through local lawyers or request evidence from foreign courts under judicial assistance treaties. The automatic exchange of financial account tax information provides a channel for information sharing among tax authorities of various countries, and relevant compliance records can sometimes indirectly confirm the existence of assets. If it is found that the other party has concealed assets, the party can claim a smaller share or no share according to Article 1092 of the Civil Code. The difficulty of investigation depends on the degree of information disclosure in that country and the status of bilateral treaties. The earlier the investigation starts, the more advantageous it will be to secure clues.

Q2: What procedures do I need to go through to use overseas bank statements and real estate documents as evidence?

According to Article 16 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", official documents and certificates formed abroad must be certified by the notary office of the country where they were issued, or go through the certification procedures stipulated in the bilateral treaties between China and that country; overseas evidence involving identity relationships must also be certified by the Chinese embassy or consulate in that country or go through the procedures stipulated in the treaty. Some countries apply an additional certificate mechanism. It is recommended that the notarization be carried out by a practicing lawyer or notary in the local area in accordance with the original documents, and the translation be issued by a qualified institution. All procedures must be completed before the deadline for providing evidence. The lack of procedures is the most common reason for the rejection of overseas evidence. It is necessary to set aside sufficient time for the procedures and not wait until the trial to find that the evidence cannot be used.

Q3: Can we ask foreign courts to help investigate the other party's assets in their local area?

Yes, it's possible. There are mainly two channels: First, if China has signed a judicial assistance treaty on civil and commercial matters with that country, the domestic court may request the competent authority of the other country to conduct investigation and evidence collection on behalf of the Chinese court in accordance with the treaty. Second, if there is no treaty relationship, a request may be made based on the principle of reciprocity. Whether to cooperate and the scope of cooperation depend on the laws of the other country and the discretion of the competent authority. The process is usually quite lengthy and cannot replace the parties' own evidence collection. A more efficient approach is to entrust a lawyer in the jurisdiction where the property is located to retrieve publicly available information such as real estate registration and company registration information in accordance with local procedures, or to have the local court issue a bank disclosure order. It is recommended to proceed along two parallel paths: start with the easier tasks first and then move on to the more difficult ones; prioritize retrieving publicly available information and leave compulsory disclosure as a last resort.

Q4: Will hiding or transferring overseas assets result in a smaller share or no share at all in the divorce settlement?

Yes. According to Article 1092 of the Civil Code, if a spouse conceals, transfers, sells, damages, or squanders the couple's joint property, or falsifies the couple's joint debts in an attempt to appropriate the other spouse's property, the court may award a smaller share or no share to that spouse when dividing the joint property in a divorce. The same applies to overseas assets. The key is to provide evidence that the assets belong to the joint property and that there was a transfer of assets: typical evidence includes nominee arrangements, large-sum remittances without a legitimate reason, low-price transfers between relatives and friends, and concentrated liquidation of assets on the eve of divorce. Even if the transfer is discovered after the divorce, the other spouse may sue for a second division of the assets from the date of discovery. The extent of the smaller share or no share is determined by the court, and the proportion is usually higher the larger the amount transferred and the greater the subjective malice.

Q5: What should I do if I only discover after the divorce that the other party still has overseas assets?

You can file a separate lawsuit to request a re-division of assets. According to Article 1092 Paragraph 2 of the Civil Code, if one party discovers that the other party has engaged in acts such as concealment or transfer of assets after the divorce, they may file a lawsuit with the people's court to request a re-division of the couple's jointly owned property. This request shall not be affected by the conclusion of the original divorce judgment on the disposition of existing assets. In the lawsuit, it is also necessary to address the issues of notarization and authentication of overseas evidence and proof of ownership of assets. If necessary, apply to the court to obtain evidence through judicial assistance channels. It is recommended to pay attention to and keep track of the other party's asset clues in daily life. Once discovered, file a lawsuit and apply for property preservation as soon as possible to avoid the assets being transferred again or acquired by third parties in good faith, which will increase the difficulty of enforcement.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Financial capital legal services·Beijing Henglue Law Firm