New Legislation on Reciprocal Recognition and Enforcement of Judgements in Matrimonial and Family cases by the Courts Hong Kong and the Mainland
Slammed by the fifth wave of COVID-19 in Hong Kong, most of the news on the television and five newspapers are on the pandemic. As everyone is getting tired and feeling gloomy about the whole situation, the announcement from the Hong Kong government earlier in February about the coming into operation of the new legislation Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) seems refreshing and exciting.
With the increasing integration between Hong Kong and the Mainland especially since after the handover in 1997, cross-border marriages have become more and more common. As with all other marriages, not all couples will end up being happily ever after. Some will end up in divorce. The fact that the parties are from two very different jurisdictions usually makes the divorce much more complicated than a usual local divorce.
In the old days, there was no legal framework allowed for judgements and orders made in matrimonial and family cases in Hong Kong and in the Mainland to be mutually recognised and enforceable across the jurisdictions. For example, if there was an order for the husband to transfer a property in the Mainland to the wife, as there was no reciprocal recognition mechanism for orders made in matrimonial proceedings between Hong Kong and the Mainland, it is difficult for the wife to enforce it because Hong Kong court orders are not binding in the Mainland. In practice, this meant that should family proceedings be commenced in either Hong Kong or the Mainland and a final order was made, due to enforcement issues, parties were often required to re-litigate the matter afresh in the other jurisdiction. In particular, if children were wrongfully removed from Hong Kong to the Mainland, it was difficult to seek for the return of the child given that there was no direct enforcement in the Mainland of custody order made by the Hong Kong Court. Reciprocal arrangement between the two jurisdictions had long been overdue.
It is therefore most welcoming for the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (a translation of “《內地婚姻家庭案件判决（相互承認及强制執行）條例草案》”) (the “Ordinance”) which was passed on 5 May 2021 to come into operation on 15 February 2022. The Ordinance implements the “Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region” (a translation of “《關于香港行政區法院認可地和執行家庭事務處與特別任務的安排》”) signed between Hong Kong and China’s Supreme People's Court on 20 June 2017.
It establishes mechanisms in respect of three types of applications in Hong Kong:
- the registration in Hong Kong of Mainland judgements given in matrimonial or family cases;
- the recognition in Hong Kong of Mainland divorce certificates; and
- facilitation of recognition and enforcement in the Mainland of Hong Kong judgements given in matrimonial and family cases.
Registration in Hong Kong of Judgements given in the Mainland
Parties are now able to apply to Hong Kong courts for the recognition and enforcement of three main types of specified orders made in the Mainland:
- Care-related Orders are orders concerning children under the age of 18 years old, their custody, guardianship, right of access, and protection of a person from domestic violence;
- Status-related Orders are orders concerning divorce and annulment, as well as issues as to parentage; and
- Maintenance-related Orders are orders concerning child maintenance, division of property which includes payment of a lump sum, transfer of property and a declaration that property belongs to one party or the other.
Once a Care or Maintenance related order has been registered, they will be enforceable in Hong Kong as if they had been originally made in Hong Kong and were made on the day of registration of the order. However, any action to enforce a registered order may only be taken after the expiry of the period within which an application for setting aside the registration of the order may be made, or after the application for setting aside has been finally disposed of. A status-related order will be recognized as valid upon registration only after the time limit to apply to set aside the registration has expired, or that the application for setting aside has been disposed of.
To register the above orders, in general, the Hong Kong court must be satisfied of all conditions set out in the legislation, including that the orders were made on or after 15 February 2022, they are effective in the Mainland. A certificate certifying the above issued by the original Mainland court is necessary for the registration application. A registration application shall be made to the Hong Kong Family Court supported by an Affirmation, setting out details of the Mainland order, and exhibiting the Order and the certificate issued by the Mainland court. Applications concerning care-related or maintenance-related order must generally be made within a time limit of two years. A Notice of Registration must also be served on all other parties to the Mainland order.
The setting aside of the registration of a Mainland order is possible. Some examples are if the Mainland judgement/order was obtained by fraud, the respondent to the Mainland judgement was not summoned to appear according to the law of the Mainland, or even if he was, he was not given a reasonable opportunity to make submissions or defend the proceedings, or if the recognition or enforcement of the specified order is manifestly contrary to the public policy of Hong Kong. If proceedings have already started in Hong Kong or elsewhere, or a judgement has already been given by a Hong Kong court or elsewhere in respect of the same cause of action, the registration may also be set aside. Applications concerning a specified order involving a child under the age of 18, the Hong Kong court must take into account the best interest of the child where considering whether recognising or enforcing the order is manifestly contrary to the public policy of Hong Kong.
Recognition of Mainland Divorce Certificates in Hong Kong
If the Hong Kong Family Court is satisfied that a certificate of divorce issued on or after 15 February 2022 is valid in the Mainland, which is presumed to be the case if it is notarized accordance with the law of the Mainland, it can make an order to recognize it. The application should be made with a supporting Affidavit exhibiting documents including the notarized copy of the Mainland divorce certificate. Notice of the recognition must also be served on the other party to the divorce specified in the Mainland divorce certificate.
The recognition order may be set aside. Some examples include if the Mainland divorce certificate was obtained by fraud, or if it is invalid, or if the recognition of which is manifestly against the public policy of Hong Kong. After the expiry of the period within which a setting aside application may be made or after such application has been finally disposed of, the divorce specified in the Mainland divorce certificate is recognized as valid in Hong Kong.
Recognition and enforcement in the Mainland of Hong Kong judgements given in Matrimonial or Family cases
Applications may also be made to the Mainland courts for recognition and enforcement of Hong Kong judgements in accordance with the law of the Mainland. To facilitate this, a party to a Hong Kong judgement may apply for a certified copy of the judgement, as well as a certificate certifying that the judgement is effective in Hong Kong which should also contain the particulars prescribed by the relevant rules with appropriate annexures. The application must be made to the Registrar of the Court of Final Appeal, the Court of Appeal, or the District Court which gave the Hong Kong judgment. Such judgement must contain order(s) set out in Schedule 3 to the Ordinance, including orders relating to divorce, maintenance, custody, declaration of parentage, adoption and orders made in relation to domestic violence. There is also a comment in the Explanatory Memorandum of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill which makes clear that the phrase “an order in relation to custody” covers an order relating to access to a child or an order for the return or delivery of a child who has been wrongfully removed from Hong Kong to the Mainland or wrongfully retained in the Mainland (other than in the context of an international child abduction case).”. This means there are now clearer mechanisms and commitments from both jurisdictions to deal with child removal cases. In the event that the execution of a Hong Kong judgment is stayed pending appeal or for any other reason, the application can only be made until the expiry of that period.
The implementation of the Ordinance offers better safeguards to the interests of parties to cross-border marriages as well as their families and children. This minimises the need for parties to re-litigate the same dispute in the Mainland and Hong Kong courts respectively, thereby saving their time and costs, as well as relieving their emotional distress. It also allows parties convenient and timely access to effective judicial relief, with their rights better protected.