Legal update: Reciprocal enforcement of civil judgments of matrimonial and family cases in Hong Kong and Mainland China15Jun2021
Attempts to enforce civil judgments in family cases between Hong Kong and Mainland China have faced many difficulties in the past, despite Hong Kong’s reunification in 1997. With a view to promote further legal cooperation between the borders, on 20 June 2017, the Supreme People’s Court and the Hong Kong Government entered into an “Arrangement on Reciprocal and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong SAR Arrangement”. This triggered multiple legislative procedures in Hong Kong and across the border in the past 4 years. On 5 May 2021, the Legislative Council in Hong Kong passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill.
The Ordinance will come into effect when the relevant court rules to complement the operation have been issued. The Ordinance will provide as follows:
A. Registration and enforcement in Hong Kong of specified orders in Mainland Judgments
Types of Orders
A party to a Mainland Judgment given in a matrimonial or family case may apply to register and enforce the Order in Hong Kong if it contains at least one of the following orders (i.e. a specified order):
- Care-related Orders, including an order:
- In relation to the custody of a minor (aged below 18 years);
- In relation to the custody of a person (whether aged above or below 18 years) who cannot live independently;
- In relation to guardianship of a minor;
- Right of access in relation to a minor by a parent; and
- Protection of a person from domestic violence.
- Status Orders, including an order:
- Granting of a divorce;
- Declaring a marriage invalid;
- For annulment of a marriage; and
- In relation to parentage of a person.
- Maintenance-related Orders, including an order:
- In relation to maintenance of a minor;
- In relation to maintenance of a person (whether aged above or below 18 years) who cannot live independently;
- In relation to spousal maintenance; and
- In relation to division of matrimonial property
When can you apply for registration?
As a general principle, you may only apply to register Mainland Judgments that are given on or after the commencement date of the Ordinance and effective in the Mainland.
Subject to the above, a party may only apply to register a maintenance-related order only after non-compliance. However, a party may apply to register a status-related order or a care-related order any time after the relevant Mainland judgment has become effective. Note that a party shall apply to register a care related order or a maintenance related order within two years of non-compliance, but the Court has discretion to extend the two-year time limit.
How to register
A party shall first obtain a certificate from the Mainland Court. With the certificate, the Mainland Judgment is presumed, until proven to the contrary, to be given in a matrimonial or family case and effective in the Mainland. The party shall then make a registration application and pay the requisite fees to the District Court in Hong Kong.
Effect of the registration
Upon registration, a registered care-related order or maintenance-related order may be enforced in Hong Kong as if it were originally made by the registering court (i.e. a Hong Kong court). However, an action to enforce such order may be taken only after the expiry of the period within which an application may be made to set aside the registration of the Order, or after the setting aside application has been finally disposed of.
A registered status-related order is also recognised as valid in Hong Kong after the period to apply to set aside the registration of the order has expired, or after the setting aside application has been finally disposed of.
Can the registration be set aside?
Yes. The following examples are grounds on which a party may apply to set aside registration:
- The Respondent to the Mainland judgment was not summoned to appear or was summoned to appear but not given a reasonable opportunity to make submissions or defend the proceedings;
- The Mainland Judgment was obtained by fraud;
- Proceedings have already been started in a Hong Kong court or a judgment has already been given by a Hong Kong court in respect of the same cause of action between the same parties; or
- Recognition or enforcement of the specific order is manifestly contrary to the public policy of Hong Kong.
Can the other party commence parallel proceedings in Hong Kong pending registration of a Mainland judgement?
The Ordinance seeks to restrict and minimise parallel proceedings in Hong Kong on the same cause of action between the same parties.
The Ordinance provides that parallel proceedings will be stayed and any new proceedings on the same cause of action will be prohibited until final disposal of a registration or setting aside application. Pursuant to the Ordinance, the Court may also exercise its discretion to provide for contingencies that may arise when the proceedings that are pending in Hong Kong are stayed. Such discretion includes making orders for the purpose of maintaining or restoring the status quo, ensuring the welfare and the best interests of a minor or preventing an irremediable injustice. Proceedings under Part IIA (Financial Relief in Hong Kong after Divorce, etc. Outside Hong Kong) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) are also exempted from the restrictions on parallel proceedings.
B. Recognition of Mainland divorce certificates
A party may apply to the District Court for recognition of a Mainland divorce certificate issued by the Civil Affairs Department. The divorce certificate must be issued on or after the commencement of the Ordinance. The Mainland divorce certificate will be recognised as valid in Hong Kong after the period for apply to set aside the recognition has expired, or after the setting aside application has been finally disposed of.
C. Facilitating recognition and enforcement of Hong Kong judgments in the Mainland
For the purposes of seeking recognition and enforcement in the Mainland of a Hong Kong judgment given in a matrimonial or family case, a party may apply to the Hong Kong court for a certified copy of the Hong Kong judgment. The relevant judgment must be given on or after the commencement date of the Ordinance and effective in Hong Kong. The party will then receive from the District Court the certified judgment, together with a certificate issued by the relevant Hong Kong Court, verifying that the judgment is given in a matrimonial or family case and is effective in Hong Kong.
The Ordinance provides a raft of options to recognise, register and thereafter enforce myriad matrimonial and family orders made in the Mainland.
As the relevant rules for the practice and procedure to effect the Ordinance are still under development, many aspects of the practical effects are not yet clear. However, it is anticipated that its remedies will fill a longstanding lacuna between the two jurisdictions and bring about improved legal co-operation in this area. Please follow us for updates on new developments, particularly when the Ordinance comes into effect.
Joanne Brown and Adrian Au
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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 in this publication.