In China, the institution of marriage was regulated by a 1980 Law amended in 2001 and then repealed by the entry into force of the Chinese Civil Code on January 1, 2021. Although the Chinese Civil Code is inspired by the legal tradition of Roman law, there are some peculiarities with respect to the legal Italian system. Let's see what they are below.
1. Quick Divorce
In China, unlike Italy, there is no institution of legal separation. Consequently, the divorce procedure is faster. If there is an agreement between the spouses, it is possible to have the divorce declared directly by the marriage registration authority. However, a “cooling-off period” (冷静 期) of 30 days from the date of the request is required to make the divorce effective. If during this period there are no withdrawals of the application by one of the spouses, the Chinese competent authority will issue the divorce certificate provided that the request is confirmed within 30 days of the expiry of the “cooling-off period”.
In Italy, on the other hand, to divorce it is first necessary to go through the legal separation of the spouses, which can be by consensus before the Registrar or Court. In the presence of minor or adult children who are incapable or severely disabled or economically not self-sufficient, it is not possible to contact the registrar, but it is mandatory to go to the court. Between separation and divorce there must be a minimum of 6 months (if the separation is consensual) or 12 months (if the separation is judicial).
For Chinese citizens interested in divorcing in Italy, it is possible upon written agreement with the spouse to exclude the application of Italian law and replace it with Chinese law (Article 5 of EU Regulation 1259/2010). In this way, the spouses will be able to access the so-called institute of divorce per saltum, that is request to the Italian Courts to have the divorce declared directly, without waiting for the prior pronouncement of a judicial or consensual separation sentence.
In China, as in Italy, the property regime applicable to spouses at the time of marriage is the legal communion of assets, unless the spouses explicitly opt for the regime of separation of assets at the time of marriage or with a subsequent notarial deed. Assets purchased before marriage do not enter the communion of assets between spouses.
However, in China, unlike Italy, assets obtained from inheritances or donations become part of the communion of assets, unless the testator or donor has clearly indicated the will to attribute the asset to only one of the spouses. In Italy, however, such assets are considered personal and are excluded from the communion of assets.
3. Custody of the children
In China, unlike Italy, there is no institution of shared custody. The art. 1084 of the Chinese Civil Code establishes that in the event of divorce, children under the age of two must be entrusted to the mother. For children who have reached two years of age, in the absence of an agreement between the spouses, the People's Court will entrust the child to the parent deemed most suitable. The Chinese Civil Code also states that "The wishes of children who have reached the age of eight should be respected."
However, any agreement between spouses on shared custody is not prohibited by Chinese law.
In light of the peculiarities indicated above, it is important to understand when an Italian judge is competent to rule on a divorce involving Chinese citizens residing in Italy. Pursuant to art. 32 of the Italian Law no. 218 of 1995, the Italian judge is competent to rule on divorce only if the marriage was celebrated in Italy or was celebrated in China and then registered in Italy. To register the marriage in Italy, it will be necessary to present a copy of the Chinese marriage certificate translated and legalized for valid use in Italy to Registrar of the Italian municipality of residence.
Avv. Lifang Dong and Avv. Chiara Civitelli
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