A new agreement (the “Arrangement”) between Hong Kong and Mainland China on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases was signed by the Secretary for Justice and the Executive Vice President of the Supreme People’s Court recently. The Arrangement aims to ensure that parties in Hong Kong and the Mainland China can enforce relevant civil judgments in matrimonial and family cases through a clear and effective legal regime. This article will briefly introduce the content of the Arrangement.
The Situation before the Arrangement
Hong Kong and the Mainland China concluded a bilateral arrangement on reciprocal recognition and enforcement of civil judgments in 2006 (the “2006 Arrangement”) in limited scope where it only applies to monetary judgments made by the courts of Hong Kong or the Mainland China that either place is agreed in writing to have exclusive jurisdiction by the parties to a commercial contract. Family matters are specifically excluded.
Urgent Call for a New Arrangement
Cross-border marriages have been increasing for the past decade and so as divorces. There is an urgent call for an arrangement on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases as it affects the interests of the cross-border married, especially the welfare of their children. As regards judgments obtained in the Mainland China, save for the recognition of a divorce granted by the Mainland court under section 56 of the Matrimonial Causes Ordinance (Chapter 179 of the Laws of Hong Kong), maintenance orders and custody orders granted by a Mainland court are not automatically recognised and enforceable in Hong Kong. Therefore, it is suggested that an extension of the 2006 Arrangement in relation to matrimonial and related matters will provide a more cost effective way of seeking reciprocal recognition and enforcement.
Scope of the Arrangement
The Arrangement covers various types of matrimonial and family civil judgments, including (a) orders made by the Hong Kong courts, including but not limited to decrees absolute of divorce; decrees absolute of nullity; orders for maintenance pending suit; maintenance orders; orders made during the lives of parties for alteration of maintenance agreements; and orders for transfer of property and sale of property granted pursuant to applications made after divorce outside Hong Kong; adoption orders; etc.; and (b) orders given by the Mainland courts, including but not limited to division of the 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 a child between cohabitees; determination of parentage; disputes on custody of a child; disputes on the duty to maintain the other party to a marriage; etc..
The Arrangement aims on providing a clear and effective legal regime for the application of the reciprocal recognition and enforcement of matrimonial civil judgments in Hong Kong and the Mainland China but not on the variation of the relevant order given by the original court. In other words, it is noted that the Arrangement does not include a power on the part of the requested court to vary maintenance orders made by the original court.
The Arrangement will come into effect after both sides have completed their respective internal procedures. In light of the increasing trend on cross-border marriages and divorces, the Arrangement will facilitate the reciprocal recognition and enforcement of civil judgments on their matrimonial and family issues. Readers intend to rely on the Arrangement for their matrimonial matters are advisable to consult their legal advisers for more details in relation to the enforcement timetable and the application procedures.
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|Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.|
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