Legal update: Reciprocal recognition and enforcement of judgments on matrimonial and related matters

20Dec2017

Introduction

Hong Kong and Mainland China have entered into a new arrangement on the reciprocal recognition and enforcement of civil judgments in matrimonial and family cases (the “Arrangement”) on 20 June 2017. The Arrangement is a significant step to providing clearer legal protection for relevant family members to enforce civil judgments in matrimonial and family cases.

This article will briefly introduce the contents of the Arrangement. Updates will be provided when further information is announced by the government.

The Call for Reciprocal Recognition and Enforcement

Cross-boundary marriages and marriages in the Mainland are both increasing. Hong Kong residents frequently cross the border to the Mainland for work or residence. Issues arise as to whether the court of the HKSAR on divorce, maintenance and related matters are recognised and enforced in the Mainland, and vice versa.

From Hong Kong’s perspective, the bilateral agreement on reciprocal and enforcement of civil judgments in 2006 is limited to business-to-business cases, family matters are specifically excluded. From the Mainland perspective, maintenance orders and custody orders granted by a Mainland court are not automatically recognised and enforceable in Hong Kong.

As a result, there is a pressing need to establish a bilateral arrangement between Hong Kong and the Mainland to provide for reciprocal recognition and enforcement of civil judgments on matrimonial and family matters, with a view to providing better safeguards to families, in particular, parties to cross-boundary marriages and their children.

The New Arrangement

The Arrangement covers various types of matrimonial and family civil judgments, including (i) orders made by Hong Kong courts, including but not limited to:

  • Decrees absolute of divorce or nullity;
  • Orders for maintenance pending suit and Maintenance orders;
  • Orders for transfer of property and sale of property made in matrimonial proceedings;
  • Orders made during the lives of parties for alteration of maintenance agreements;
  • Maintenance orders and orders for transfer of property and sale of property granted pursuant to applications made after divorce outside Hong Kong;
  • Custody orders, non-molestation orders, re-entry orders and variation or suspension of custody orders, etc.

(ii) orders made by the Mainland courts, including but not limited to:

  • Division of property of parties to a marriage during the subsistence of the marriage;
  • Dissolution of a marriage;
  • Validity of a marriage;
  • Annulment of a marriage;
  • Disputes on custody of and right of access to a child; and
  • Protection orders in situations of domestic violence, etc.

The Arrangement aims at providing a legal regime for the application of the reciprocal recognition and enforcement of matrimonial civil judgments in Hong Kong and the Mainland. However, the Arrangement does not include a power for the requested court to vary maintenance orders made by the original words. In other words, parties must still return to the original court if a variation on a maintenance order is required.

The Arrangement covers judgments made from different levels of courts in Hong Kong and the Mainland. Judgments in the Mainland from the following are recognised in Hong Kong: (i) any judgment of the second instance; (ii) any judgment of the first instance from which no appeal is allowed or one in respect of which the time limit provided for an appeal under Mainland law has expired; and (iii) any judgment made in accordance with the procedure for trial supervision. Judgments in Hong Kong from the following courts are recognised in the Mainland: (i) Court of Final Appeal; (ii) the Court of Appeal; (ii) the Court of First Instance of the High Court; and (iv) the District Court which are legally effective (even if pending an appeal).

Conclusion

The Arrangement will come into effect after Hong Kong and the Mainland have completed their respective internal procedures. The HKSAR Government intends to introduce the legislative proposals to the Legislative Counsel before the end of 2018. Interested readers should stay tuned to Tanner De Witt’s updates. In the meantime, the Chinese version of the Arrangement can be viewed here.

Adrian Au

For more information on reciprocal recognition, please contact:

Joanne Brown
Partner | Email

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.