Chinese Divorce Law: Cooling-Off Period, Property, and Custody

Chinese divorce law, set out in the Civil Code that took effect on January 1, 2021, gives couples two ways to end a marriage registered in mainland China: a mutual-consent filing at the local Civil Affairs Bureau, or a lawsuit in the People’s Court when one spouse refuses. The first route is fast but comes with a mandatory 30-day cooling-off period; the second can stretch to 18 months or two years if the court denies the initial petition. Property, custody, and support each follow their own rules under specific Civil Code articles, and the facts of your marriage will matter more than any general summary suggests.

The Two Routes to Ending a Marriage

If both spouses agree to divorce, they file a written divorce agreement at the local Civil Affairs Bureau. Under Article 1076, that agreement has to confirm the divorce is voluntary and spell out arrangements for child support, property division, and debts.¹ Both spouses appear in person with the agreement and their identity documents.

If one spouse refuses, the other has to sue in the People’s Court. The court must attempt mediation first, and it will only grant the divorce when the evidence shows the marriage has genuinely broken down.² Which track applies is the first thing to work out, because everything downstream — timing, costs, evidence, outcomes — depends on it.

The 30-Day Cooling-Off Period

Mutual-consent divorces are not immediate. Article 1077 imposes a 30-day cooling-off period that begins the day after the Civil Affairs Bureau receives the application. During those 30 days, either spouse can walk in and withdraw the application on their own, without giving a reason.³

When the cooling-off period ends, a second 30-day window opens. Both spouses have to return in person to collect the divorce certificate. If either one skips it, the application is treated as withdrawn and the couple has to start over.³

The cooling-off period applies only to the administrative route. It does not apply to court-filed divorces, which matters for anyone whose spouse might use the withdrawal mechanism to obstruct the divorce.

Grounds a Court Will Accept

Article 1079 says the court grants a litigation divorce when “mutual affection no longer exists” and mediation has failed. The statute lists five situations that qualify:

Bigamy or cohabitation with another person.
Domestic violence, maltreatment, or desertion of a family member.
Habitual gambling or drug use where the spouse refuses to change despite repeated warnings.
Continuous separation for at least two years because of marital discord.
Other circumstances showing the marriage is over.

If a court has declared one spouse missing, the other can file for divorce and it will be granted.²

Evidence carries the case. Police reports and medical records support domestic violence claims. Separate leases, utility bills, and residential registration documents covering the full two years back up a separation claim. Without solid documentation, judges routinely deny first petitions on the reasoning that the marriage may still be repairable.

When the Court Denies the First Petition

First-time denials are common, especially when the evidence of breakdown is thin or the other spouse insists on saving the marriage. After a denial, the Civil Procedure Law bars refiling for six months unless new circumstances arise.⁴

Article 1079 provides a backstop. If the court has already rejected a divorce petition and the spouses live apart for one more year afterward, the court must grant the divorce on a second filing.² The realistic timeline for a contested divorce with a first-time denial runs 18 months to two years. Plan for that if you enter the litigation track.

Who Is Restricted From Filing

Two Civil Code provisions limit who can file.

Under Article 1082, a husband cannot file for divorce while his wife is pregnant, within one year after she gives birth, or within six months after a pregnancy ends. The wife can file at any of those times. A court can hear the husband’s petition anyway if it considers it necessary, but this happens rarely.⁵

Article 1081 covers military marriages. When one spouse is an active-duty service member, the civilian spouse needs the military member’s consent to divorce, unless the military spouse is at “serious fault” — the same kinds of misconduct listed in Article 1079, such as domestic violence or living with another person.¹

How Property Gets Divided

The Civil Code separates community property from separate property, and that line controls the whole property split.

Community property, under Articles 1062 and 1063, covers most of what a couple builds during the marriage:³

Wages and bonuses earned by either spouse.
Profits from any business operation or investment.
Royalties and licensing income from intellectual property.
Property inherited or received as a gift, unless the will or gift contract designates it for one spouse alone.

Separate property stays with the owner. It includes premarital assets, personal injury compensation, items designated to one spouse in a will or gift contract, and everyday personal-use items.³ Prenuptial agreements can also carve out specific assets.

When the spouses can’t agree, Article 1087 tells the court to divide community property based on the actual state of the property while favoring the interests of the children, the wife, and the spouse who is not at fault.³ In a divorce driven by adultery or abuse, the innocent spouse can expect a larger share.

Fault Damages and Housework Compensation

Two other financial claims sit on top of the property split.

Article 1091 lets a spouse who was not at fault claim damages when the divorce was caused by bigamy, cohabitation with another person, domestic violence, maltreatment or abandonment of a family member, or other serious misconduct.¹ The fifth category — “other serious faults” — was added by the current Civil Code and gives courts room to award damages in situations that don’t fit the first four grounds.

Article 1088 covers a spouse who took on a disproportionate share of childcare, eldercare, or supporting the other spouse’s career. That spouse can claim compensation at divorce whether or not anyone was at fault.¹ The amount is set by agreement, or by the court if the spouses can’t agree.

Child Custody by Age

Article 1084 sets a tiered custody framework.

Children under two go to the mother. Courts deviate only when the mother’s care would be genuinely harmful.⁶

For children between two and eight, the court picks the arrangement that best serves the child. If the parents can’t agree, the judge weighs each parent’s living situation, financial stability, bond with the child, and ability to provide a consistent home.⁶

Once a child is eight, the court has to take the child’s own preferences into account. The statute calls for respecting the child’s “true wishes,” which in practice means the judge speaks with the child directly or through a court-appointed intermediary.⁶

Whichever parent gets custody, both parents keep their legal rights and obligations to raise, educate, and protect the child.

Child Support

Article 1085 requires the non-custodial parent to pay support. The amount and duration are decided by agreement first; when the parents can’t agree, the court sets it based on the child’s actual needs and each parent’s finances.⁶

Supreme People’s Court judicial interpretations fill in the numbers. For a parent with steady income, support usually runs 20% to 30% of total monthly earnings. With two or more children, the share can go higher but generally stays below 50% of monthly income. For a parent without fixed income, courts look to annual earnings or the average income in that industry.

One provision often catches people off guard: Article 1085 lets the child later request an increase above the original amount if the child’s needs have genuinely changed.⁶ A figure set for a toddler is not locked in for the child’s whole minority.

Protection Orders for Domestic Violence

China’s Anti-Domestic Violence Law, separate from the Civil Code, gives victims a remedy that does not depend on filing for divorce. Anyone suffering domestic violence or facing a real danger of it can apply to the People’s Court for a personal safety protection order.⁷

The application can be written or verbal. If the applicant can’t apply on their own because of coercion, threats, or limited legal capacity, a close relative, the local police, a women’s federation, or a community organization can apply for them.⁷

Courts must rule within 72 hours, or 24 hours in emergencies. An order is valid for up to six months and can be extended before it expires.⁷ Getting a protection order early in a domestic-violence divorce serves two purposes at once: immediate safety and a documented record for the divorce case.

When One Spouse Is a Foreign National

If one spouse is a foreign national, an overseas Chinese, or a resident of Hong Kong, Macao, or Taiwan, mutual-consent divorce is still available. Both parties appear in person at the marriage registration authority where the Chinese inland resident’s permanent household is registered. The foreign spouse needs a valid passport or travel document, and the divorce agreement has to be signed at the registration office in front of staff.

Foreign marriage certificates used in Chinese divorce proceedings go through a chain of authentication: local notarization, authentication by the relevant secretary of state, and authentication by the Chinese embassy or consulate in the issuing country.⁸ A separate procedure exists for recognizing a foreign divorce judgment in China through the intermediate People’s Court.

What It Costs

Mutual-consent divorces at the Civil Affairs Bureau involve only minor administrative fees.

Litigation divorces carry court filing fees on a progressive scale tied to the value of the property in dispute. Cases with no property claim, or property worth up to 10,000 yuan, start at a base fee of 50 yuan. Above that, the percentage applied to each bracket drops as the amount rises, from 2.5% on the portion between 10,000 and 100,000 yuan down to 0.5% on amounts above 20 million yuan.⁹ A straightforward divorce without significant property stays at the low end. Cases involving real estate, business assets, or overseas holdings run considerably higher, and attorney fees vary widely by city and complexity.

1
China Daily. Civil Code of the People’s Republic of China
2
China Justice Observer. Civil Code of China – Book V Marriage and Family
3
National People’s Congress of the People’s Republic of China. Civil Code of the People’s Republic of China
4
AsianLII. Civil Procedure Law of the People’s Republic of China
5
Trans-Lex.org. Civil Code of the People’s Republic of China (2020)
6
Wikisource. Civil Code of the People’s Republic of China – Part 5 Marriage and Family
7
National People’s Congress of the People’s Republic of China. Anti-Domestic Violence Law of the People’s Republic of China
8
Consulate General of the People’s Republic of China in New York. Authentication
9
China Justice Observer. What Are Court Costs in China