Reciprocal Recognition and Enforcement of Judgments in Matrimonial and Family Cases between Hong Kong and the Mainland: Key Takeaways
On 15 February 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) and its corresponding Rules (Cap. 639A) (“the Ordinance”) came into effect. The Ordinance aims to put an end to the long-standing difficulties faced when enforcing Mainland matrimonial or family judgments in Hong Kong, and vice versa.
This article summarises the key developments brought about by the Ordinance.
(1) Registration of Mainland matrimonial judgments in Hong Kong
Specified orders: There are three types of specified orders in Mainland judgments with respect to matrimonial or family cases that can be registered and enforced in Hong Kong, provided (a) the judgments were given on or after 15 February 2022 and (b) are effective in the Mainland, namely: -
(i) status-related orders - such as orders relating to divorce, invalidity of marriage, annulment and parentage of a person;
(ii) care-related orders - such as orders relating to the custody, guardianship, access for children under the age of 18, custody of a person above the age of 18 who cannot live independently and protection of a person from domestic violence; and
(iii) maintenance-related orders - such as orders relating to spousal and child maintenance, division of property (including delivery or transfer of property, payment of sum of money, vesting of property and declaration that a property belongs to one party to the marriage).
Applying for registration: In order to register a specified order, certain requirements have to be satisfied depending on the nature and type of the order. For example, the registration application should be made to the Hong Kong Family Court supported by an affidavit exhibiting documents such as the Mainland judgment and a certificate issued by the original Mainland Court certifying that the Mainland judgment concerns a matrimonial or family case and is effective in the Mainland. Unless extended by the Hong Kong Court, registration applications for maintenance-related and care-related orders must be registered within 2 years. An applicant must serve a notice of registration of the specified order on all other parties to the Mainland judgment.
Enforceability and validity: A registered Mainland care-related order or maintenance-related order may be enforced in Hong Kong as if it were an order originally made by the Hong Kong Court. Subject to the time limit to set aside the registered order having lapsed or after a setting aside application, if made, has been disposed of, a registered Mainland order is enforceable/ valid in Hong Kong.
Setting aside grounds: The other party to the Mainland judgment can apply to have a registration order set aside by a summons supported by affidavit on grounds such as the respondent was not summoned to appear, the Mainland judgment was obtained by fraud, or it is contrary to public policy.
(2) Recognition in Hong Kong of Mainland divorce certificates
Applying for recognition: You may make an application to the Hong Kong Family Court supported by affidavit (exhibiting documents such as a notarised copy of the Mainland divorce certificate) for recognition of a Mainland divorce certificate issued on or after 15 February 2022. If a recognition order for the recognition of a Mainland divorce is made, the applicant has to serve a notice of the recognition order on the other party to the divorce.
Validity: The divorce specified in the Mainland divorce certificate will be recognised as valid in Hong Kong after the expiry of the period within which an application for setting aside the order may be made, or a setting aside application, if made, has been disposed of.
Setting aside grounds: You can set aside a recognition order on grounds such as the certificate having been obtained by fraud, it is invalid, or contrary to public policy.
(3) Facilitating the recognition and enforcement of Hong Kong judgments in Mainland
Application for certified copy of and certificate of Hong Kong judgments: Aside from procedures to recognise and enforce Mainland orders/ judgments in Hong Kong, the Ordinance also has mechanisms to facilitate the enforcement of Hong Kong matrimonial or family judgments in the Mainland.
Applications fora certified copy of Hong Kong judgments given in matrimonial or family cases may be made as long as the judgment was given on or after 15 February 2022 and is effective in Hong Kong. Applications should be made to the Registrar of the Hong Kong Court that handed down the Hong Kong judgment. If the Hong Kong judgment is stayed for any reason, an application for a certified copy may not be made until the stay is lifted.
What can be recognised?: The Ordinance offers a plethora of Hong Kong order/judgments that can be recognised in the Mainland, from a decree absolute of divorce and custody orders to injunctions granted under the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189).
Key Takeaways
1. Allow timely judicial relief: The Ordinance provides more expeditious mechanisms for you to protect your rights across both jurisdictions. Whilst maintenance orders made in certain foreign jurisdictions are enforceable in Hong Kong (subject to satisfactions of certain conditions) under the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap. 188), payees have historically struggled to enforce Mainland maintenance orders in Hong Kong as that ordinance is not applicable to Mainland judgments. The Ordinance now includes Mainland maintenance orders as specified orders, which are capable of being enforced in Hong Kong, and as a result, would aid payees of Mainland maintenance orders who may otherwise struggle to enforce the payments or recover the arrears.
2. Better safeguard for children’s interest?: As the Ordinance is relatively new, the true extent of its function remains to be tested.In particular, it remains to be seen if the Ordinance will assist parties in the Mainlandseeking the prompt return of children wrongfully retained or removed from Hong Kong in breach of a Hong Kong custody order. The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill as annexed to the Legislative Council Brief (File Ref. L/M(5) to LP CLU 5037/7/3C)issued by the Department of Justice on 25 November 2020, included a helpful Explanatory Memorandum. At paragraph 19 of the Explanatory Memorandum, it explains that an order in relation to custody made under Schedule 3 of the Ordinance includes an order for the return of a child wrongfully removed from Hong Kong to the Mainland or wrongfully retained in the Mainland (other than in an international child abduction case). However, the same has not been clearly stated within the Ordinance.
3. Am I still married?: Prior to the implementation of the Ordinance, there was uncertainty over whether Mainland Courts would recognise divorce decrees from Hong Kong. Parties to a Mainland marriage in Hong Kong divorce proceedings may have had their marriage dissolved under Hong Kong law but the divorce decree may not have been recognised in the Mainland. Therefore, the new mechanisms bring certainty that a divorce decree obtained in Hong Kong can now be recognised and enforced in the Mainland, and vice versa.
4. Reducing costs: The Ordinance restricts parallel proceedings in Hong Kong and the Mainland (and the impact this may have on proceedings under Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192)as between Hong Kong and the Mainland remains to be seen) and minimises the need for a jurisdiction race or litigation of the same issues separately in one jurisdiction after the other. In doing so, it will save time and costs, and most importantly reduce the parties’ emotional distress.
For more information or assistance on reciprocal enforcement of Mainland orders/ judgments in Hong Kong, please contact our team at CRB at info@crb.com.hk.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.
CRB is a Family Law Firm practicing in areas of divorce, children, nuptial agreements, collaborative practice and mediation in Hong Kong.
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