Last reviewed: 28 October 2026
Quick answer
If you married in mainland China and either spouse is an Australian citizen, is domiciled in Australia, or has ordinarily lived here for 12 months, you can usually divorce in Australia. A Chinese court can recognise an Australian divorce itself, but in practice it may not recognise Australian orders about property or children, and Chinese real estate usually has to be dealt with in China. Mainland China is not a party to the Hague Child Abduction Convention, so preventing a child being taken there is critical. There is no reciprocal child support arrangement with China.
Many Chinese families in Australia have property in both countries: a home in Melbourne or Sydney, often bought with help from parents in China, and apartments, companies or bank accounts in China. When a marriage ends, the two legal systems take very different approaches. Getting the strategy right at the start can save years.
Divorcing in Australia after marrying in China
Australia recognises marriages registered in China. You can apply for divorce in Australia if at least one spouse:
- is an Australian citizen;
- is domiciled in Australia, meaning they regard it as home and intend to stay indefinitely; or
- has ordinarily lived in Australia for the 12 months before filing.
You must have been separated for 12 months with no reasonable likelihood of reconciliation. Separation can occur while living under the same roof. If you have been married less than two years, you need a counselling certificate or an explanation. Your Chinese marriage certificate will need a certified English translation.
The divorce order only ends the marriage. Property and parenting are separate applications. For married couples, property applications must generally be made within 12 months after the divorce becomes final.
Serving a spouse in China
China and Australia are both parties to the Hague Service Convention, so documents can be served in mainland China through the Convention’s Central Authority. This route is formal and can take many months, and documents need Chinese translation. Documents must be served at least 42 days before the hearing, so plan early.
Divorcing in China
Chinese law offers two routes under the Civil Code.
- Divorce by registration. Where both spouses agree on the divorce, children and property, and the marriage was registered in China, they can apply at the marriage registration office. There is a 30-day cooling-off period during which either spouse can withdraw. Both spouses must then attend in person within the following 30 days, or the application lapses.
- Divorce by litigation. A court will grant a divorce where mutual affection has broken down, for example after two years of separation, domestic violence or abandonment. The court tries mediation first. A first application is sometimes refused, and the case can take considerably longer where assets are overseas.
Chinese courts generally take jurisdiction based on the defendant’s hukou or habitual residence. Where the main assets are in China, Chinese courts readily accept cases.
Australia or China: which court?
This is often the most important decision in a China–Australia separation.
| Issue |
Australia |
Mainland China |
| Starting point for property |
No presumption; contributions and future needs weighed |
Joint property acquired during marriage generally divided equally, with adjustments |
| Pre-marital and gifted property |
Included in the pool; source counts as a contribution |
Generally the spouse’s personal property |
| Parents’ contributions to a home |
Treated as a gift or loan depending on evidence |
Rules on parental funding under the Supreme People’s Court’s 2025 interpretation |
| Children |
Best interests of the child |
Under 2 generally with mother; best interests over 2; wishes of children 8 and over respected |
Other factors include where the children live, where the assets are, whether orders can be enforced, and cost and language. An Australian court will only stop its own proceedings if Australia is a clearly inappropriate forum.
Property in Australia and China
What an Australian court considers
An Australian court considers all property and debts of both spouses in any country, including:
- apartments, houses and commercial property in China;
- shares in Chinese companies and family businesses;
- Chinese bank accounts, wealth management products and investments;
- money held for a spouse by relatives;
- Chinese social insurance and pension entitlements, which are not Australian superannuation.
Each party must fully disclose their finances, including assets in China. Concealing assets, or moving them to relatives, can lead to adverse findings, costs orders and orders being set aside. See our article on hidden overseas assets in divorce.
Since 10 June 2025, the Family Law Act sets out the property framework directly, including the economic effect of family violence and the housing needs of children.
An Australian court cannot change title to Chinese real estate. It can order a spouse personally to transfer or sell it, or more commonly adjust the division of Australian assets to reflect its value. Where the main assets are in China, enforcement there must be considered from the outset.
Money from parents in China
Many Melbourne homes are bought with significant help from parents in China. When the couple separates, whether that money was a gift to both spouses, a gift to one, or a loan to be repaid becomes critical.
In Australia, the court looks at the evidence: transfer records, any loan agreement, what was said at the time, and whether repayments were ever made or demanded. A loan documented only after separation is treated with suspicion. Parents who want to protect a contribution should document it properly at the time. In China, the 2025 judicial interpretation includes specific rules where a home was fully funded by one spouse’s parents.
How Chinese law divides property
Under the Civil Code, wages, business income, investment returns and most gifts or inheritances received during the marriage are joint property. Pre-marital property and property given to one spouse by will or gift are personal. Joint property is generally divided equally, with adjustments for children, the wife and the innocent party. Where one spouse owned a home before marriage but the mortgage was paid during the marriage, the other spouse is compensated for their share of the repayments and related increase in value.
Will China recognise an Australian divorce?
A spouse who wants to remarry in China, update hukou records or deal with property there will usually need the Australian divorce recognised by an Intermediate People’s Court. The application requires a notarised copy of the divorce order with an apostille (China joined the Apostille Convention in November 2023) and a Chinese translation.
China’s Supreme People’s Court has indicated that a foreign judgment dealing only with the divorce itself can be recognised without proving reciprocity. Australian orders about property, maintenance and children face greater difficulty, because there is no judgment enforcement treaty between Australia and China, and Chinese courts have refused to recognise the financial and custody parts of foreign family judgments. Where assets in China matter, a separate Chinese proceeding may be needed after recognition of the divorce. See also divorced in mainland China, property in Australia.
Children
In Australia, parenting decisions are made in the child’s best interests, and there has been no presumption of equal shared parental responsibility since May 2024. Grandparents in China often play a large role in children’s lives, and the court can consider those relationships.
The risk of a child being taken to China
Mainland China is not a party to the Hague Child Abduction Convention. If a child is taken to China without consent, there is no Convention process to have the child returned, and the left-behind parent may have to bring proceedings in China, where an Australian custody order may not be enforced.
Prevention is therefore essential:
- An Australian court can order that a child be placed on the Family Law Watchlist, which alerts the Australian Federal Police at international airports and seaports.
- The court can order that passports, including Chinese passports and travel permits, be surrendered.
- A Child Alert Request asks DFAT not to issue an Australian passport for the child.
Once parenting proceedings are on foot or orders are in place, removing a child from Australia without consent or a court order may be a criminal offence. These orders can be sought urgently.
Relocating to China with a child
A parent who wants to move with a child to China needs the other parent’s agreement or a court order. Because return is not enforceable through the Convention, courts consider carefully what safeguards will protect the child’s relationship with the parent remaining in Australia.
Child support
China is not a reciprocating jurisdiction for child support. Services Australia generally cannot assess or collect child support against a parent living in mainland China. Settlement terms, such as lump-sum child support or security over Australian property, become more important.
Agreements before and during marriage
Chinese law allows spouses to agree in writing how property acquired before or during marriage is held. An agreement made in China is not an Australian binding financial agreement unless it meets Australian requirements, including independent legal advice for each party. A Chinese court may also disregard terms about custody. Couples with assets in both countries should consider agreements drafted for both systems.
Resolving it by agreement
Mediation in Mandarin, online, allows spouses and family members in China and Australia to resolve disputes without parallel litigation. An agreement can become Australian consent orders, with coordinated steps for assets in China.
Frequently asked questions
We married in China but live in Australia. Do we need to divorce in China? No. You can divorce in Australia if one of you meets the requirements. You may then need the divorce recognised in China.
Can an Australian court divide our apartment in Shanghai? The court includes its value and can order your spouse to transfer or sell it, or adjust the Australian assets. Changing title in China requires Chinese procedures.
My parents paid most of the deposit on our Melbourne home. Will my spouse get half? Not automatically. The court considers whether the money was a gift or loan, to whom, and all other contributions.
My spouse has threatened to take our child back to China. What can I do? Seek urgent orders, including watchlist and passport orders. China is not a Hague Convention country.
Can I get child support from a parent in China? Not through Services Australia. Other options include court orders and settlement terms.
How do I get an Australian divorce recognised in China? Apply to an Intermediate People’s Court with a notarised and apostilled copy and a Chinese translation. Our notary public can help prepare documents.
How we help
Chua Tan Associates has practised in Melbourne since 1990, acting for Chinese families in Mandarin, Cantonese and English. Our principal, Justin Chua, studied in Shanghai and understands how Chinese families hold and fund property across both countries. Our firm’s notary public prepares documents for use in China.
Justin is a Nationally Accredited Mediator, Family Dispute Resolution Practitioner and family law arbitrator. We work with lawyers in China where steps are needed there. We help with:
- deciding where to file and protecting assets early;
- property settlements involving Chinese property, companies and family money;
- urgent orders to prevent a child being taken overseas;
- recognition of Australian divorces in China;
- financial agreements for couples with assets in both countries.
The initial consultation is a paid 30-minute consultation by video or in Melbourne. Contact us to book.
This article is general information only and is not legal advice. PRC law points are a general overview; advice from a lawyer in China may be needed for steps in China.
Official sources
Cross-border separation guides for other countries
Chua Tan Associates acts for families and their professional advisers on Australian legal matters with a cross-border dimension, working alongside lawyers overseas. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice.
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