If you file a divorce case in China, usually three issues should be settled in the court proceeding. The first issue is whether the court will grant divorce. If yes, then followed child custody issue, and split of community property issue.

Now we only focus on the split of property issue.

For the community property commonly owned by husband and wife, the real property (apartments, houses or land) often takes the most important proportion. In some of the cases, the real property locate both in China and overseas. So when Chinese courts handle such divorces, how will they deal with the real properties located in various countries?

First, under Article 27 of the Law on Applicable Laws in Civil Foreign-related Relationships of China, Chinese court will apply for Chinese laws to decided the divorce, custody issues and split of movable properties. When it comes to real property, the court practice may varies. For the real properties locate in China, the court apply for the Chinese law to make judgement. But for the real properties locate outside China, some courts apply for Article 27 of the Law on Applicable Laws in Civil Foreign-related Relationships of China and apply the Chinese law to deal with the real property outside China. Other courts took a different view and divided the real property outside China from the real property in China and decide that the real property outside China shall be governed by the laws of the state where it locates and reject to make court judgement on such property.

Two reasons are behind this approach.

First, under Chinese civil procedure laws, a party which claims to split the property outside Chinese needs to provide evidence regarding the existence, value of the property. Such evidence shall be notarized in local and certified by Chinese Embassy or consulate. Not all such evidence could go through such complex procedure.
Second, even if the Chinese court makes judgement on the real property outside China, it still faces obstacle to enforce the judgement in the state where the real property is located. Enforcing anther country’s court judgement involves sovereignty issue and without a judicial cooperation treaty between the countries, a country is often reluctant to enforce another country’s court judgement unless there is a reciprocal basis.