Divorce Case without Marriage Registration
Divorce Case without Marriage Registration
The Civil Code stipulates a formal requirement for the validity of a marriage, i.e., marriage registration. This means that a man and a woman intending to marry each other must apply to the marriage registration office of civil affair bureau in the jurisdiction where they will conclude a marriage. If a Chinese citizen and a foreigner or a person without nationality is going to marry each other, they should appear at the marriage registration office in the county/district in which the Chinese citizen’s household is registered.
In practice, many couples live together as husband and wife and even give birth to children before they apply for marriage registration. In such a case, their relationship does not constitute a marriage as a matter of law, and both the man and the woman are free to break up and marry others.
Therefore, it is meaningless for them to file a divorce case to terminate a marriage which does not exist, and the case will not be admitted by the court.
Provided, however, that if their relationship had satisfied the basic elements of a marriage before Feb 1st, 1994, the date of entry into force of the Administrative Regulations for Marriage Registration issued by the Ministry of Civil Affairs, their relationship constitutes a de facto marriage and their divorce case will be admitted by the court. The said basic elements include their legal capacity to enter into a marriage and their free and contract to marry each other.
If their relationship has satisfied the basic elements of a marriage after the above date, the court will inform them to complete marriage registration before filing for divorce. If they fail to do so, their divorce case will be rejected.
Provided, further, that they may file a case to settle their disputes over property/debt division and custody, if any. In such a case, the court will not consider whether their relationship constitutes a marriage or cohabitation.
Robert Zhang 
Steve Li 