[Direct answer]In the Beijing area, the applicable law for the division of marital property in foreign-related divorces cannot be generalized. It depends on whether the divorce is litigated or agreed upon, and whether the disputed property is movable or immovable. According to Article 24 of the Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations (adopted on October 28, 2010, and implemented on April 1, 2011), the parties to a marital property relationship may agree to apply the law of the spouse's habitual residence, the law of the spouse's nationality, or the law of the location of the main property; if no choice is made, the law of the common habitual residence shall apply, and if there is no common habitual residence, the law of the common nationality shall apply. Article 27 stipulates that the law of the court's location shall apply to litigated divorces; Article 36 stipulates that the law of the location of the immovable property shall apply to the ownership and division of foreign-owned real estate. Therefore, the ownership and division of overseas real estate are usually determined according to the law of the location of the property.

I. Problem Background and Typical Scenarios

The forms of foreign-related marriages are becoming increasingly diverse: one or both parties are foreign nationals who have lived abroad for a long time, and each party owns a set of real estate and multiple bank accounts both within and outside of China. The most common confusion during divorce is: if a lawsuit is filed in a Chinese court, can overseas assets be dealt with together? Which country's laws will the court use to determine whether a certain asset belongs to an individual or is jointly owned? These questions directly determine the division results and whether it is necessary to initiate separate procedures abroad. It is often necessary to clarify these issues in the divorce plan.

II. Key points of contention

First, jurisdiction. Chinese courts have jurisdiction over foreign-related divorce cases that meet the requirements, but the division of overseas real estate often requires the cooperation of the courts in the location of the real estate or the local registration procedures. Second, applicable law. The marital property relationship allows both parties to choose the law by agreement. If no choice is made, the law of the common habitual residence or the common nationality shall apply in order; while the litigation divorce procedure itself applies the law of the court's location. Third, special rules for real estate. The real estate property rights shall apply the law of the location of the real estate, and overseas real estate generally cannot be directly divided according to Chinese law. Fourth, recognition and enforcement of judgments abroad. Whether a Chinese effective judgment can be recognized and enforced abroad depends on bilateral treaties, reciprocity relations, and the specific provisions of local laws. It requires advance assessment rather than dealing with it temporarily at the division stage.

III. Professional analysis by Henglue Lawyers

Judging from Henglue's experience in handling foreign-related family affairs, the most common misunderstanding is confusing "applying Chinese law" with "being able to handle the case in Chinese courts". In fact, even if the case is under the jurisdiction of Beijing courts and the procedures apply Chinese law, the ownership and transfer of overseas real estate still need to be governed by the laws of the place where the real estate is located. The division scheme in Chinese judgments may require separate litigation or registration abroad to be implemented. Our experience is to take three steps: first, confirm ownership by distinguishing personal property from joint property through premarital agreements, marital property agreements, or proof of funding sources; second, determine the applicable law by verifying the parties' habitual residence, nationality, and main property location to determine which country's law applies; and finally, implement the solution by resolving domestic property in Chinese procedures and asserting overseas property in local courts as needed, to avoid the situation where one party obtains a judgment in China but cannot enforce it abroad. The overall design of foreign-related marital property relations typically requires a combination of the following aspects:Foreign-related and cross-border legal servicesAndDivorce litigation and family disputesThe idea is to make overall arrangements; for matters involving the inheritance of family property, it is also necessary to cooperate with\nInheritance and division of family assetsTake them into account together. It should be noted that the choice of applicable law in the agreement is not without boundaries. If it involves China's mandatory provisions and public order, it may still be subject to restrictions.

IV. Practical suggestions and legal basis

According to Articles 24, 26, 27, and 36 of the Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations (adopted on October 28, 2010, and implemented on April 1, 2011), Articles 1062 and 1087 of the Civil Code of the People's Republic of China (implemented on January 1, 2021), and the relevant provisions of foreign-related civil litigation procedures in the Civil Procedure Law of the People's Republic of China (amended on September 1, 2023, and implemented on January 1, 2024), the handling process is as follows: First, sort out the parties' nationalities, habitual residences, and property distribution to determine whether there are comparable connecting points; Second, prioritize specifying the applicable law and jurisdiction clauses in pre-marital or marital property agreements to resolve uncertainties in advance; Third, promptly file a lawsuit and apply for preservation measures for domestic property if no agreement can be reached, to prevent its transfer; Fourth, entrust local lawyers as soon as possible to conduct asset verification and claim rights for overseas property, and, if necessary, apply for preservation measures locally at the same time. The relevant litigation arrangements can be referred to for reference.Divorce litigationThe advancement of the practical path of the project.

5. Henglu Law Firm's Reminder

In cross-border divorces, the application of law is not an abstract issue. It directly determines who will own the property, how the account balance will be divided, and whether the debts will be considered joint debts. There are three risks worth paying attention to: First, delaying the process will give overseas assets sufficient time to be transferred, so it's necessary to fix the marital agreement and evidence of fund flows as soon as possible; Second, don't assume that obtaining a judgment in China will necessarily enable the enforcement of overseas property. Recognition and enforcement are independent procedures; Third, the cooperation between overseas lawyers and domestic lawyers needs to be arranged in advance. If we wait until the judgment takes effect to start the process, we will often miss the opportunity for preservation. For parties who have been living abroad for a long time, the procedures of entrustment, notarization and authentication, and document delivery may all take a long time.Beijing Henglu Law FirmIt is recommended to compile a list of overseas assets and ownership evidence into a booklet before initiating legal proceedings.

VI. Frequently Asked Questions

Q1: Can I get a share of the overseas property in a lawsuit in China?

It can be claimed, but the outcome is limited. Chinese courts have jurisdiction over divorce itself and can accept the case. However, the ownership of overseas real estate still needs to be determined in accordance with the laws of the place where the real estate is located. Whether it can be actually divided and how it can be converted into cash depends on the local regulations and the recognition of the judgment abroad. Usually, it requires the cooperation of local lawyers to complete the process.

Q2: What evidence do I need to prepare?

The proof of marital relationship, the identity and residence documents of both parties, the list of domestic and overseas assets and ownership certificates, the purchase contract and payment records, the pre-marital or marital property agreement, the proof of fund sources, and materials reflecting the common habitual residence for living and working.

Q3: What is the approximate cost of a lawyer's fee for a divorce involving foreign parties?

It is usually determined through negotiation based on the amount of the case or the stages of the process. For cases involving the identification of overseas assets, notarization and authentication, and collaboration with foreign lawyers, there will be additional fees. The specific fees and terms will be stipulated in the written contract. It is recommended to clarify the scope of services and the fee-sharing method in advance.

Q4: How long does the entire process take?

The first-instance divorce litigation within the country generally lasts three to six months, and it will take longer if it involves notice delivery, notarization and authentication, or evidence collection abroad. The recognition and enforcement procedures abroad are calculated separately, and the overall time arrangement should be based on more than one year.

Q5: What should I do first?

First, sort out the nationalities, habitual residences, and distribution of assets of both parties at home and abroad, determine the available connecting points and applicable laws, then decide on the jurisdiction of the court and the scope of the litigation claims, while securing evidence of the assets and assessing whether preservation measures are necessary.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.