International Divorce and Inheritance in China: A Guide for Foreign Families

Cross-border family cases are disorienting because the same set of facts can produce very different results depending on which country's law applies. A foreign spouse divorcing a Chinese national, or a foreign heir inheriting an apartment in Nanjing, is governed by China's choice-of-law rules — chiefly the PRC Law on the Application of Law for Foreign-related Civil Relations (涉外民事关系法律适用法). This guide explains the rules in plain English.

The framework: which law applies

China resolves foreign-related family disputes through choice-of-law rules, not by automatically applying Chinese law. The key rules:

• Matrimonial property: spouses may choose the law of one spouse's habitual residence, nationality, or the place of the main property. Without a choice, the law of their common habitual residence applies; failing that, the law of their common nationality (Article 24).
• Divorce by litigation: the court applies its own law (lex fori) — so a divorce heard in a Chinese court applies Chinese law to the divorce itself (Article 27).
• Maintenance (扶养): the court applies whichever of the parties' habitual residence, nationality, or main-property laws best protects the dependent party (Article 29).
• Statutory succession: movable property follows the law of the deceased's habitual residence at death; immovable property follows the law of the place where it is located (Article 31).
• Wills: a will is valid as to form if it satisfies the law of the testator's habitual residence or nationality at the time of making or death, or the law of the place where the will was made (Article 32); its validity follows the testator's habitual-residence or nationality law (Article 33).
• Estate administration and unclaimed estates: governed by the law of the place where the estate is located (Articles 34–35).

Divorce: property division in a Chinese court

If a divorce is litigated in a Chinese court, the court applies Chinese law to the proceedings. On the substance of property division, the PRC Civil Code provides the baseline: property acquired during the marriage is generally community property (Article 1062), and on divorce it is divided through agreement or, failing agreement, by the court taking account of the interests of children, the wife and the no-fault party (Article 1087).

Two practical points matter most:

• Immovable property in China is subject to China's exclusive jurisdiction for real-estate disputes under the PRC Civil Procedure Law, so a Chinese apartment is effectively litigated in China regardless of where the divorce is filed.
• Evidence of what is "community" versus "separate" property decides outcomes. Overseas assets, pre-marital assets and gifts are frequent battlegrounds — document them early.

Inheritance: what a foreign heir must actually do

China has no estate tax and no forced-heirship system as rigid as some civil-law jurisdictions, but the practical path for a foreign heir is procedure-heavy:

1. Confirm the applicable law under Article 31 and determine who inherits — for a China-situs apartment, Chinese law governs, which generally means the statutory heirs (spouse, children, parents) share the estate.
2. Obtain a notarized inheritance certificate (继承权公证书): the heir applies to a Chinese notary with the death certificate, kinship proof, and the will (if any). This certificate is the document banks and the real-estate registry require to release the assets.
3. Transfer title and liquidate — for a property, the title registration is changed into the heir's name before any sale.
4. Remit funds overseas: taking the proceeds out of China is regulated by the State Administration of Foreign Exchange (SAFE). Expect to produce the notarial certificate, tax records and the bank's own documentation for the outward remittance of inherited property.

The remittance step is the one foreign families most often underestimate. The inheritance itself is recognized, but moving the money across the border requires the paperwork to line up with SAFE's rules — start assembling it as soon as probate begins.

Common mistakes to avoid

• Assuming a foreign will is automatically effective in China for Chinese real estate — the will's form and validity are tested under the choice-of-law rules, and immovable property still passes under Chinese law;
• Missing the exclusivity rules for Chinese real estate and filing in the wrong forum;
• Starting the remittance only after assets are liquidated, then discovering the notarial or tax documents are incomplete;
• Overlooking that maintenance and child-support claims use a different choice-of-law rule (the most protective law), which can shift the outcome.

For a fuller picture of our private-client work, see our practice areas, or contact us to discuss your family's situation. This article is general information and not legal advice; outcomes depend on the specific facts and the applicable law.