Published on and written by Cyril Jarnias
Family law in China is a complex, constantly evolving field that reflects the country’s profound social transformations. At the heart of these legal adjustments are two crucial subjects: adoption and divorce.
As China modernizes its laws to meet the needs of a changing population, adoption practices have had to adapt to modern socio-economic realities, particularly by offering increased protections for children and simplifying procedures for adoptive parents.
Meanwhile, divorce reforms seek to balance tradition and modernity, facing rising divorce rates and evolving perceptions of marital union.
These changes raise fundamental questions about how Chinese society perceives family, making the study of this legal framework not only fascinating but essential for understanding current social dynamics in China.
Fundamentals of Family Law in China
The historical evolution of family law in China is marked by a transition from a system based on Confucian rites and family duties toward a codified legal model, influenced since the late 20th century by Western law. Traditionally, Chinese family law centered on family hierarchy and duties to the clan; this approach has been gradually supplanted by the introduction of legal norms aimed at protecting individual rights and clearly structuring family relationships.
Fundamental Legal Principles
The fundamental legal principles governing family law today include:
- Equality before the law: All citizens are equal in access to marriage, divorce, and adoption.
- Principle of legal rationality: Each judicial decision relies on an abstract prescription applied to a concrete situation.
- Protection of minors and vulnerable parties: The state’s obligation to ensure their safety and well-being.
- Regulated contractual freedom: Freedom to marry or divorce under certain strict conditions.
Major Laws in Effect
| Law | Area Covered | Date Adopted/Amended |
|---|---|---|
| Civil Code | Marriage, adoption, divorce | 2021 |
| Marriage Law | Marriage conditions | Amended in 2001 |
| Adoption Law | Adoption procedure | Last revised in 1998 |
Recent Legislative Reforms
- Enforcement of the new Civil Code (2021), which harmonizes all rules related to marriage, divorce, and adoption.
- Simplification of divorce procedures with the introduction of expedited “mutual consent divorce” through administrative procedure.
- Relaxation of demographic policies following the gradual end of the one-child policy.
Concrete Impact
Family policy is evolving toward greater openness, as illustrated by:
- Rural couples allowed since 1984 to have a second child under specific economic conditions.
- Increased possibility for some parents who had a child illegally to obtain official recognition upon payment.
Application in Chinese Courts
Judges rigorously apply the principle of equality before the law but sometimes have interpretive leeway according to local family circumstances.
However, there are regional variations:
- In some rural provinces, a marked preference for boys due to local social traditions is still observed.
- In several major cities (Beijing, Shanghai), judicial procedures are generally faster and more modernized than in some rural areas where some uncodified customary practices still persist.
Concrete Examples
- An urban couple wishing to divorce can quickly benefit from “express divorce” without a hearing if no objections are raised by either party.
- In matters of international or domestic adoption, it is required that the child’s best interests be demonstrated, with a systematic social investigation before any final decision.
Theoretical Principles in Practice
Equality before the law
A man or woman can freely request divorce without official fear or legal discrimination.
Enhanced social protection after reform
Children from unregistered unions can now more easily access public assistance thanks to new civil provisions post-2016.
Synthetic Key Points
- Family law historically based on Confucius then modernized under Western influence
- Current principles: equality – rationality – protection
- Major laws: Civil Code (2021), specific marriage/adoption/divorce laws
- Recent reforms facilitating particularly consensual separation
- Variable application depending on urban/rural region
The new Civil Code marks a major turning point in individual protection within Chinese families while preserving some traditional aspects.
Good to Know:
Family law in China has evolved significantly since post-revolution reforms, with the first marriage law introduced in 1950, establishing gender equality and eliminating arranged marriage. Currently, fundamental legal principles include marriage as a voluntary and monogamous union, governed by the 1980 Marriage Law, revised in 2001 to include provisions on mutual consent divorce and more flexible enforcement of judgments in contentious divorce cases.
Adoption is governed by the 1991 law revised in 1999, which stipulates that the minimum age for adoption is 30, with preference for children of deceased or incapable parents. The major recent legislative reform is the 2021 Civil Code, introducing changes in marriage termination, such as the 30-day cooling-off period before finalizing a consensual divorce, aimed at reducing impulsive divorces.
Application of these laws can vary between regions, illustrated by instances where urban courts may adopt more progressive interpretations compared to rural areas. For example, in Shanghai, courts encourage mediation agreements for post-divorce child custody issues, a practice less common in other provinces.
Adoption in China: Legislation and Procedures for Expatriates
Summary of Current Chinese Adoption Legislation
Chinese adoption legislation is primarily framed by the Adoption Law of the People’s Republic of China and specific administrative measures for foreigners. Since August 2024, China has suspended international adoptions, except for intrafamily adoptions (i.e., by family members up to the third degree of kinship, such as uncles, aunts, siblings, and first cousins). Expatriates can therefore only adopt in China if they meet the required kinship criteria and if the adoption also complies with the legislation of the adopter’s country of residence.
Only children with special needs (CSN) are offered for international adoption, and most cases now concern intrafamily or exceptional adoptions.
Eligibility Criteria for Expatriates
The main eligibility criteria are as follows:
- Required family relationship: The foreign adopter must be a blood relative (not by marriage) of the child, within three degrees of kinship (siblings, first cousins).
- Age: The adopter must generally be at least 30 years old.
- Marital status: Married couples are preferred, but single adoption is possible under certain conditions.
- Health: Adopters must be in good physical and mental health, without serious chronic diseases.
- Income: Proof of stable financial resources sufficient to meet the child’s needs.
- Criminal record: No convictions for serious crimes.
Key Steps in the Adoption Procedure for Expatriates
| Step | Description | Estimated Time |
|---|---|---|
| 1 | File preparation (via central authority or accredited agency in country of residence): social report, certificates, approval, etc. | 3-6 months |
| 2 | Transmission and review of file by Chinese central authority | 2-4 months |
| 3 | Matching with child (if eligible) | Variable |
| 4 | Travel to China for adoption: interview, document signing, registration with provincial civil affairs bureau | 2-3 weeks on site |
| 5 | Obtaining certificate of conformity (Hague Convention) and child’s passport | 1-2 weeks |
| 6 | Application for long-stay adoption visa at consulate of country of residence | 1-2 weeks |
Required Documents (indicative list):
- Social or family report established by an accredited authority or agency
- Passport copies and photos
- Proof of resources and housing
- Medical certificates
- Criminal record certificate
- Proof of kinship relationship (for intrafamily adoption)
- Adoption approval issued by country of residence
Role of Accredited Adoption Agencies and Other Intermediaries
Expatriates must go through an accredited adoption agency in their country of residence, which is in contact with the central adoption authority in China.
- These agencies assist with file preparation, document transmission, and serve as intermediaries throughout the process.
- They also ensure post-adoption follow-up required by Chinese legislation and the Hague Convention.
- Accredited Chinese agencies coordinate matching, organize on-site appointments, and facilitate adoption finalization.
Obstacles and Challenges for Expatriates and Practical Advice
- Suspension of international adoptions: Since August 2024, only intrafamily adoptions are possible, significantly reducing opportunities for expatriates not blood-related to the child.
- Administrative delays: File processing can be lengthy, and document collection requires great rigor.
- Rapid legislative evolution: Rules change regularly; it is essential to stay informed through competent authorities and accredited agencies.
- Recognition of adoption in country of residence: There may be legal discrepancies between China and the adopter’s home country, sometimes requiring file adaptation or additional procedures.
Practical Tips:
- Prefer assistance from an experienced and recognized agency.
- Anticipate translations, legalizations, and document authentications.
- Maintain regular contact with the central authority and accredited agency to track file progress.
- Prepare for an extended stay in China to finalize the adoption.
Practical Example (Recent Intrafamily Case)
A French expatriate wishing to adopt his sister’s son (his nephew) living in China must:
- Obtain adoption approval in France.
- Prepare a complete file via AFA or an OAA.
- Provide proof of kinship relationship.
- Travel to China to finalize the adoption before local authorities.
- Then apply for a long-stay adoption visa for the child.
Impact of Recent Legislative Changes
The near-total closure of international adoptions outside the family framework requires expatriates to justify a direct kinship relationship, strongly limiting possibilities for conventional adoption in China for foreigners. Only procedures strictly complying with Chinese legislation and the Hague Convention are now accepted.
Important: Any attempt at individual adoption without going through official channels is strictly prohibited and exposes to registration refusal or legal proceedings.
Good to Know:
In China, current legislation requires that expatriates wishing to adopt go through the China Center for Children’s Welfare and Adoption (CCCWA), respecting strict criteria: being married for at least two years if it’s the first marriage or five years if there was a previous divorce, being aged 30 to 55, and enjoying good mental and physical health. Prospective parents must also have an annual income of at least $10,000 per family member, including the adopted child, and possess a minimum net worth of $80,000. The procedure involves submitting a complete file including criminal record checks and psychological evaluations, followed by a long wait before matching with a child; this can take 12 to 36 months. Accredited adoption agencies play a crucial role in assisting families, facilitating the administrative process, and helping with necessary document translations. Common challenges include long waiting periods and bureaucratic complexity, accentuated by recent restrictive policies. To overcome these obstacles, it is advisable to work with experienced agencies and participate in support groups to exchange practical information among expatriates.
Divorce Guide for Expatriates in China
Legal Framework for Divorce for Expatriates in China
Divorce for expatriates in China is governed by Chinese marriage and family law, but applicable law may vary depending on the spouses’ nationality and place of marriage registration. In principle, China agrees to handle divorces involving at least one Chinese spouse, a marriage registered in China, or the habitual residence of one spouse in China for at least one year. If both spouses are foreigners but have resided in China for at least one year, they can also divorce before Chinese jurisdictions.
Differences Between Amicable and Contested Divorce
| Criterion | Amicable (Mutual) Divorce | Contested Divorce |
|---|---|---|
| Procedure | Administrative | Judicial |
| Competent Authority | Civil Affairs Bureau | People’s Court |
| Spousal Agreement | Required | Unilateral possible |
| Estimated Duration | Quick (few weeks) | 3 to 6 months or more |
| Cost | Moderate | Higher |
| Legal Representation | Not mandatory | Often recommended |
- Amicable divorce: Both spouses must appear together at the Civil Affairs Bureau with required documents. This divorce is quick, inexpensive, and does not necessarily require lawyer intervention.
- Contested divorce: If no agreement is reached, one spouse can file with the court. The judge then rules on marriage dissolution, property division, child custody, etc.
Process for Initiating Divorce Proceedings
- Verify court or Civil Affairs Bureau jurisdiction according to place of residence and nationality.
- Gather necessary documents:
- Original marriage certificate and translation if needed
- Passports or identification documents of both spouses
- Residence permit or proof of residence in China
- Written agreement on divorce and child custody (for amicable divorce)
- List of common property and financial documents (for contested divorce)
- Contact competent entity:
- Amicable divorce: Civil Affairs Bureau of district of residence
- Contested divorce: People’s Court of place of residence of one spouse
- Begin procedure: File submission, payment of administrative or judicial fees, possible summons to hearing.
Potential Difficulties for Expatriates
- Jurisdiction issues: Chinese courts may refuse to rule if neither spouse is domiciled in China or if the marriage lacks sufficient connection with China.
- International recognition: Divorce granted in China is not automatically recognized abroad. Some countries require that divorce be granted in the country of habitual residence or according to their own criteria. Recognition of the decision by home country authorities may be necessary.
- Language and access to information: Procedures are in Chinese and understanding legal implications can be difficult without specialized assistance.
- Property division and alimony: Application of foreign or Chinese law depends on matrimonial regime and party agreement, which can complicate asset liquidation.
Impacts on Child Custody for Expatriate Families
Chinese courts prioritize the child’s best interests. Parental authority, child residence, and visitation rights can be decided according to Chinese law, even if the child does not have Chinese nationality.
It can be difficult for a foreign parent to obtain custody or effective visitation rights, especially if the other parent remains in China.
Custody decisions made in China may not be enforceable in the home country if they do not comply with its standards.
Practical Tips and Resources for Expatriates
- Quickly consult a lawyer specialized in international family law, ideally speaking your language.
- Verify recognition of divorce in your home country before initiating procedure.
- Prepare all necessary documents, including certified translations.
- Contact the consulate or embassy for administrative advice and divorce recognition.
- Consider family mediation to limit conflicts and facilitate amicable agreements.
Useful Resources
- Lawyers specialized in international divorce in Shanghai, Beijing, and other major Chinese cities.
- Local Civil Affairs Bureaus (for amicable divorces).
- People’s Courts (for contested divorces).
- Consular services of your home country for divorce recognition.
Important: The complexity of divorce situations for expatriates in China requires personalized legal assistance and particular attention to international recognition of decisions.
Good to Know:
Divorce for expatriates in China is governed by the Chinese legal framework, where two types of divorce exist: amicable and contested. Amicable divorce requires mutual agreement between spouses, while contested divorce can be initiated by one spouse before the courts. To begin the procedure, documents such as the marriage certificate and passports must be provided, and the local civil registry office or people’s court must be contacted depending on the type of divorce. Expatriates may encounter difficulties related to jurisdiction, particularly if their marriage or assets are registered abroad, which can complicate international recognition of divorce decisions. Expatriate families should be attentive to potential impacts on child custody, often influenced by the children’s primary residence. It is advisable to consult a lawyer specialized in international law or contact the local embassy to obtain appropriate resources and overcome potential administrative obstacles.
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Cyril Jarnias is an independent expert in international wealth management with over 20 years of experience. As an expatriate himself, he is dedicated to helping individuals and business leaders build, protect, and pass on their wealth with complete peace of mind.
On his website, cyriljarnias.com, he shares his expertise on international real estate, offshore company formation, and expatriation.
Thanks to his expertise, he offers sound advice to optimize his clients' wealth management. Cyril Jarnias is also recognized for his appearances in many prestigious media outlets such as BFM Business, les Français de l’étranger, Le Figaro, Les Echos, and Mieux vivre votre argent, where he shares his knowledge and know-how in wealth management.
