Legal update: Reciprocal enforcement of civil judgments of matrimonial and family cases in Hong Kong and Mainland China29Mar2022
This is an update to our article dated 15 June 2021 regarding Reciprocal enforcement of civil judgments of matrimonial and family cases in Hong Kong and Mainland China.
The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) came into force on 15 February 2022. Its corresponding Rules (Cap 639A) set out the relevant procedures and evidence required in support of the applications for:-
- The registration of specified court orders in an effective Mainland judgment given in a matrimonial or family case (Registration Application);
- Recognition of Mainland divorce certificates (Recognition Application); and
- Certified copies of and certificate for Hong Kong judgements given in matrimonial or family proceedings (Certified Copy Application).
The specified orders that may be registered in Hong Kong are set out in Schedule 2 of the Ordinance and can be categorised into the following:
- Care-related orders, such as orders relating to custody and guardianship;
- Status-related orders, such as an order granting divorce or for the annulment of a marriage; and
- Maintenance-related orders, including those related to division of property between the parties to a marriage.
Intended Applicants for Registration Applications should note in particular:
Care-related orders – If there has not been non-compliance of such orders, registration can be made at any time. If however, there has been non-compliance, application must be made within 2 years of the non-compliance.
Maintenance related orders – registration applications can only be made where there has been non-compliance with the order. If the order requires payment to be made or an act to be performed on a specific date, the registration application must be made within 2 years of the non-compliance. Where the order does not specify a date and non-compliance occurs, the application must be made within 2 years after the date on which the judgement or the order becomes effective.
Intended applicants must note that the Court may refuse the application on the ground of lateness.
Maintenance Related Order
The evidence to be adduced in support of registration of a maintenance related order will differ depending on whether the order is for a periodical or non-periodical payment. For example, an applicant seeking to register an order of non-periodical payments will have to inform the court of the due date for that payment (if any), and if not, then the date on which the order became effective; whereas an applicant seeking to register an order of periodic payments will have to show which of the payments have not been paid and the total amounts overdue.
Security for Costs
Applicants in a Registration Application (whether seeking to register or to set aside a registered order) or in a Recognition Application (whether seeking to recognise or to set aside a recognised order) maybe required to give security for costs .
Enforcement of Registered Orders
A maintenance-related order may only be registered to the extent that it relates to payments that have not been made, either before or after the date of application. In other words, in the event that there are further defaults of payment, the applicant may apply for enforcement of the payment directly without having to apply for registration again.
Once registered, an applicant may seek to execute and/or enforce such order in Hong Kong in the usual manner as enforcing a civil debt under a Hong Kong order.
The usual enforcement methods include:
- The defaulting party assets (e.g. bank balances and/or personal belongings) are seized and sold to settle outstanding sum;
- The defaulting party be summoned to Court to explain his financial status and his default in payment;
- An order prohibiting the defaulting party from leaving Hong Kong until the overdue sum is fully paid; and
- Committal proceedings against the defaulting party for a fine or imprisonment.
Applications may be made for the recognition of Mainland divorce certificates issued by the civil affairs departments in the Mainland if the certificates are issued on or after the Ordinance came into force, i.e., on or after 15 February 2022.
These applications shall be supported by affidavit evidence exhibiting documents such as a notarised copy of the Mainland divorce certificate.
In both of these procedures, the applicant is required to serve a notice of registration or a notice of the recognition order on all other parties to the Mainland judgment, which provide for a time limit within which other parties may apply to set aside the application with reasonable grounds.
Certified Copy Application
The Hong Kong judgments in question must contain one or more of the orders set out in Schedule 3 of the Ordinance, which include:
- a decree absolute of divorce;
- a maintenance order;
- an order on custody of, access to or return of the children of the family.
Applications shall be made to the court that made the relevant judgment.
Once a party obtained the certified copy of and certificate for the Hong Kong judgment, an application may be made to the Mainland courts for the recognition and enforcement of the Hong Kong judgment in the Mainland.
Applications under the above ordinance is not free. Currently, a fee of HK$1,045 is payable for a Registration Application and a Recognition Application. A lesser fee of HK$125 is payable for a certified Copy Application.
For more information, click here for an infographic or here for a thematic webpage published by the Department of Justice or discuss your application with us for more detailed advice on the steps and evidence required in support of your application.
Joanne Brown and Adrian Au
For specific advice on your situation, please contact:
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.
 Security for Costs is a payment into court by the applicant as a security for the opposing-party in the event that the applicant loses in the application and cannot afford to pay the opposing party’s costs.