Lawyer’s Answer: In China, there are two ways to get a divorce: through mutual agreement or through litigation. If your partner has a mental illness, they may be considered a person with limited or no capacity for civil conduct, which means you cannot opt for a mutual agreement divorce and must proceed with a divorce through litigation.

In a divorce through litigation, you need to consider the following factors:
 
 

The duration of your partner’s mental illness:

• If your partner had a mental illness before marriage, which is one of the situations prohibited by Chinese law for marriage, and they remain untreated after marriage, you can apply for a marriage annulment.
• If your partner developed a mental illness after marriage, the outcome of a divorce through litigation varies:
  • In the first lawsuit, the court generally does not grant a divorce. Since spouses have an obligation to support each other, and considering the emotional and life challenges the ill partner may face after divorce, the court tends to avoid granting divorce.
  • If the court refuses the divorce in the first lawsuit, you can file for divorce again six months after the first lawsuit’s judgment becomes effective.
  • In special cases where the illness is severe and long-lasting, the first lawsuit court might grant a divorce.

Division of joint property:
To protect the legal rights of both spouses, you may need to provide some financial assistance or property division to your partner.

Child custody:
Since your partner is unable to provide proper care due to their mental illness, children are typically awarded to you for custody.

In summary, if your partner has a mental illness and you want a divorce in China, it generally involves litigation. The outcome depends on the circumstances, the severity of the illness, and the court’s judgment regarding the best interests of both spouses and any children involved.