A step forward in local legislation to implement reciprocal recognition and enforcement of judgments in matrimonial and family cases between Hong Kong and Mainland China

18 December 2020, Family Law, Legal Alert by Paul Kwan, Cecilia Lau, Mandy Pang

The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill (Bill) was introduced into the Legislative Council on 2 December 2020. It initiates legislation procedures to implement 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” (Arrangement) signed between the HKSAR Government and Supreme People’s Court over three  years ago. The Bill aims to reduce the time, costs and emotional distress of parties to cross-border marriages having to re-litigate matrimonial and family cases in Hong Kong and Mainland China. 

In our previous article, “A brief discussion on laws in Hong Kong and China regarding cross-border marriage”, we compared the main aspects (e.g. grounds and procedures for divorce, division of assets and custody) common to matrimonial and family cases in Hong Kong and the Mainland.

The Bill provides for (i) the recognition and enforcement in Hong Kong of judgments in matrimonial and family cases given in the Mainland; (ii) facilitating recognition and enforcement in the Mainland of such judgments given in Hong Kong; and (iii) recognition of Mainland divorce certificates. This article outlines the main aspects of the Bill.

Recognition and enforcement in Hong Kong of specified court orders made in Mainland judgments

A party to an effective Mainland judgment given in a matrimonial or family case, which contains at least one specified order, can apply to enforce that judgment in Hong Kong.

The Bill sets out three types of specified orders, namely:

  • care-related orders, which includes an order:
    • in relation to custody of a child under 18 years of age;
    • in relation to custody of a child (whether or not under 18 years of age) who cannot live independently;
    • in relation to guardianship of a child under 18 years of age;
    • for the right of access in relation to a child under 18 years of age;
    • for protection of a person from domestic violence;
  • status-related orders, which includes an order:
    • granting a divorce;
    • declaring a marriage invalid;
    • for the annulment of a marriage;
    • in relation to parentage of a person.
  • maintenance-related orders, which includes an order:
    • in relation  to the maintenance of a child under 18 years of age;
    • in relation to the maintenance of a child, whether or not under 18 years of age, who cannot live independently;
    • in relation to spousal maintenance;
    • for division of property between the divorcing parties.

How does a party apply for registration?

The application is made to the District Court for one or more of the specified order(s) referred to above, after first obtaining a certificate issued by the Mainland court. With the certificate, the Mainland judgment is presumed, until the contrary is proved, to have been given in a matrimonial or family case and to be an effective judgment in the Mainland. In this respect, if a Mainland judgment is appealed, it will not be considered to be an effective judgment until the appeal has been concluded.

When can an application for registration be made?

An application for registration may be made in respect of a Mainland judgment which is made after the Bill has been passed and the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Ordinance) has come into effect.

Registration of a status-related or care-related order may be applied for at any time after such order has become effective, whereas registration of a maintenance-related order may only be applied for after non-compliance. 

For care-related and maintenance-related orders, the application for registration must be made within 2 years of non-compliance, but the Hong Kong court may give permission for an application to be made beyond that time-limit.

On what grounds can registration be set aside?

The grounds upon which a party may apply to set aside registration include (but are not limited to) the following:

  • 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; or
  • 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.

What is the effect of registration?

A registered care-related or maintenance-related order may be enforced in Hong Kong as if it were originally made by the registering court on the day of registration, but such order may only be enforced after expiry of the period specified by the registering court within which any application to set aside registration could be made and after any such setting aside application has been finally disposed of. A registered status-related order, is recognised as valid in Hong Kong only after expiry of the period within which an application to set aside registration may be made and after any such setting aside application has been finally disposed of.

What if there are Hong Kong proceedings pending at the time of the application to register a Mainland judgment?

The Bill provides that proceedings pending before a Hong Kong court in respect of the same cause of action and between the same parties 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. The cause of action will not be regarded as the same, if the circumstances giving rise to the proceedings that are pending in Hong Kong or which are intended to be brought in Hong Kong are materially different from those giving rise to the cause of action for which the Mainland judgment was given. Also, the court has a discretion to make orders to maintain or restore the status quo, ensuring the welfare and best interests of a child or preventing an irremediable injustice. Proceedings under Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192) i.e. financial relief in Hong Kong after divorce, etc. outside Hong Kong are exempt from these restrictions on parallel proceedings.

Facilitation of recognition and enforcement in the Mainland of Hong Kong judgments

Application for certification of Hong Kong judgments

For the purpose of seeking recognition and enforcement in the Mainland, a party to an effective Hong Kong judgment in a matrimonial or family case given on or after commencement of the Ordinance can apply to the court for a certified copy of the Hong Kong judgment and a certificate certifying that the judgment is given in a matrimonial or family case and is effective in Hong Kong.

There are fourteen types of orders that may be made in judgments in matrimonial or family cases, for example, a decree absolute of divorce or nullity, maintenance orders, orders for transfer of property and orders in relation to children (adoption custody and access).

Recognition in Hong Kong of Mainland divorce certificates

A party to a divorce specified in a Mainland divorce certificate issued on or after the Ordinance comes into effect may apply to the District Court to register the divorce certificate. It will be recognised as valid in Hong Kong after the period for applying to set aside recognition has expired or after any such setting aside application has been finally disposed of.

Progress of the Bill through LegCo

The Bill has now entered the Committee Stage, and a Bills Committee was formed on 4 December 2020 to scrutinize the Bill. We will keep track of notable issues discussed or raised by the Bills Committee.  

On the Mainland side, according to the latest information obtained by our Shanghai representative office, the Arrangement will be brought into operation after promulgation of a judicial interpretation by the Supreme People's Court. However, there have apparently already been attempts in Guangdong Province, Shaanxi Province and Jiangsu Province to apply provisions of the Arrangement and seek orders in the Mainland courts for recognition of divorce decrees and judgments for asset division made by the Hong Kong court. These attempts have been rejected by the Mainland courts since The Arrangement has not yet been implemented by the judicial interpretation.

Comment

According to Hong Kong Judiciary statistics, there were 68,374 divorce cases in Hong Kong between 2017 and 2019, of which around 18% related to marriages in the Mainland. Once the Arrangement comes into force, it should go some way to helping parties to cross-border marriages by alleviating the need for them to litigate matrimonial and family disputes in both places.