China has now adopted its first law on the conflict of laws.
Chapter 3 deals with foreign-related marriage and divorce issues. However, Chapter One is also relevant to any such case.
Specifically with respect to divorce, the new law provides that if the parties themselves do not choose the law that will govern their divorce, the law of their common habitual residence shall be applied.
If there is no such common habitual residence, the law of their common nationality shall be applied or otherwise the law of the place where the agency responsible for completing the divorce formalities locates shall be applied.
LAW OF THE PEOPLE'S REPUBLIC OF CHINA
ON THE LAWS APPLICABLE TO FOREIGN-RELATED CIVIL RELATIONS
(Adopted October 28, 2010)
CHAPTER ONE
GENERAL PROVISIONS
ARTICLE 1 This law is formulated with a view to specifying the laws applicable to foreign-related civil relations, resolving foreign-related civil disputes fairly and safeguarding the legitimate rights and interests of the parties.
ARTICLE 2 The laws applicable to foreign-related civil relations shall be specified in accordance with this law. Where other statutes have a special and different provision on the law applicable to a foreign-related civil relation, that provision shall be followed.
Where no applicable law to a foreign-related civil relation has been specified in this law or other statutes, the law that is most closely connected with the foreign-related civil relation shall be applied.
ARTICLE 3 The parties may explicitly choose the law applicable to their foreign-related civil relation in accordance with the provisions of this law.
ARTICLE 4 Where a mandatory provision of the law of the People's Republic of China (“PRC”) exists with respect to a foreign-related civil relation, that mandatory provision shall be applied directly.
ARTICLE 5 Where the application of a foreign law will be prejudicial to the social and public interest of the PRC, the PRC law shall be applied.
ARTICLE 6 Where a foreign law is applicable to a foreign-related civil relation and different laws are implemented in the different regions of that country, the law of the region that is most closely connected with the foreign-related civil relation shall be applied.
ARTICLE 7 Limitation period is governed by the law that should be applicable to the foreign-related civil relation.
ARTICLE 8 Classification of foreign-related civil relations is governed by the law of the forum.
ARTICLE 9 The foreign law applicable to a foreign-related civil relation does not include the conflict rules of that country.
ARTICLE 10 The foreign law applicable to a foreign-related civil relation will be ascertained by the relevant people's court, arbitration institution or the administrative agency. Where the parties have chosen a foreign law to be applicable, they shall adduce the law of that country.
Where the foreign law cannot be ascertained or the law of that country does not have a relevant provision, the PRC law shall be applied.
CHAPTER THREE
MARRIAGE AND FAMILY
ARTICLE 21 Conditions of marriage are governed by the law of the parties' common habitual residence. Absent common habitual residence, the law of their common nationality shall be applied. Absent common nationality, the law of the place where the marriage is concluded shall be applied, if the marriage is concluded in a party's habitual residence or in the country of a party's nationality.
ARTICLE 22 Formalities of marriage are valid if they conform to the law of the place where the marriage is concluded, or the law of a party's habitual residence or nationality.
ARTICLE 23 Personal relation of spouses is governed by the law of their common habitual residence. Absent common habitual residence, the law of their common nationality shall be applied.
ARTICLE 24 In respect of spousal property, the parties may by agreement choose to apply the law of a party's habitual residence or nationality, or the law of the place where the main property locates. Absent any choice by the parties, the law of their common habitual residence shall be applied; absent common habitual residence, the law of their common nationality shall be applied.
ARTICLE 25 Personal and property relations between parents and children are governed by the law of their common habitual residence. Absent common habitual residence, the law of a party's habitual residence or nationality, which better protects the rights and interests of the weaker party, shall be applied.
ARTICLE 26 In respect of consented divorce, the parties may by agreement choose to apply the law of a party's habitual residence or nationality. Absent any choice by the parties, the law of their common habitual residence shall be applied; absent common habitual residence, the law of their common nationality shall be applied; absent common nationality, the law of the place where the agency responsible for completing the divorce formalities locates shall be applied.
ARTICLE 27 Divorce decided by a court is governed by the law of the forum.
ARTICLE 28 Conditions and formalities of adoption are governed by the laws of the habitual residence of the adopter and the adoptee. The effect of adoption is governed by the law of the adopter's habitual residence when the adoption occurs. The termination of adoption relation is governed by the law of the adoptee's habitual residence when the adoption occurs or by the law of the forum.
ARTICLE 29 Support1 is governed by the law of a party's habitual residence, or the law of a party's nationality, or the law of the place where the main property locates, which better protects the rights and interests of the person being supported.
ARTICLE 30 Guardianship is governed by the law of a party's habitual residence or nationality, which better protects the rights and interests of the person under custody.
Translation by Professor Lu, the Secretary General of the Chinese Society of International Law, for www.ConflictofLaws.net