Background

On 15 February 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (the “Ordinance”) and the Rules came into effect, marking a milestone for enhanced cross border legal cooperation between Hong Kong and Mainland China. Prior to the enactment of the Ordinance, there has been consultation between the Supreme People’s Court and the Hong Kong Government, which brought about the Arrangement for the Recognition and Enforcement of Judgments in Civil Matrimonial and Family Cases in 2017. Since then, preparation to legislate the arrangement has been in progress. After 4 years, this long-awaited Ordinance takes effect to strip inherent complexities off the divorce proceedings across the border. 

Features

Registration of specified orders in Mainland judgments

Under s.7 of the Ordinance, a party to a Mainland judgment can lodge an application to the District Court (Family Court) to register a specified order, provided that (1) it is given in a matrimonial or family case on or after the commencement date of the Ordinance and (2) is effective in the Mainland. Specified orders include:

1.        A status-related order: an order granting a divorce / declaring that a marriage is invalid/ for the annulment of a marriage/ in relation to the parentage of a person;

2.        A care-related order: an order in relation to the custody / guardianship of a person under the age of 18 years etc.; and

3.        A maintenance-related order: an order in relation to the maintenance of a person under the age of 18 years / spousal maintenance etc.

Upon registration, a care-related order or a maintenance-related order may be enforced in Hong Kong as if they were made by the registering court on the day of registration. Proceedings can subsequently be brought in relation to the order while the registering court can oversee the execution of the order. On the other hand, a registered status-related order is only deemed valid after the expiry of the period specified by the registering court within which an application for setting aside the registration of the order may be made. If any application is raised during this period, the registered order will come into effect when the application is fully determined.

Recognition of Mainland divorce certificates

Under s.29 of the Ordinance, a divorce certificate issued in Mainland China on or after the commencement date of the Ordinance may be recognized in Hong Kong upon application to the District Court. If the District Court considers the certificate valid, they will specify a timeframe for the divorce certificate to be set aside. After expiration of this timeframe and if no application to set the divorce certificate aside has been made, the divorce will be recognized as valid in Hong Kong.

Assisting enforcement in the Mainland of Hong Kong judgments

Under s.38 and 39 of the Ordinance, Hong Kong Courts must issue a certified copy of the Hong Kong judgment to the party applying for the same, so as to certify that the judgment is effective in Hong Kong. Examples of orders that must be included in the judgment are listed in the Schedule of the Ordinance, including a decree absolute of divorce, a decree absolute of nullity and a maintenance order. Applications can then be lodged for enforcement of the Hong Kong judgment in appropriate Mainland courts.

Importance and benefits

The Ordinance provides a way to solve the historical difficulty faced by cross-border families by offering a more cost-and-time-effective mechanism to recognise, register and thereafter enforce matrimonial and family orders made in Mainland China. It should be particularly noted that the orders in relation to custody under a Hong Kong Judgment can cover an order for the return or delivery of a child who has been wrongfully removed or abducted from Hong Kong to Mainland China. Before the enactment of the Ordinance, seeking the return of children was difficult given Mainland China is not a member to the Hague Convention on the Civil Aspects of International Child Abduction.

With mutual recognition and enforcement procedures made available by the Ordinance, the interest of parties to cross-border marriages as well as their families and children can be better protected. Further, this new mechanism effectively reduces the need for parties to re-litigate the same dispute in the Mainland and Hong Kong courts respectively, thereby saving their time and costs and relieving their emotional distress in dealing with issues arising in cross-border marriages.

Key takeaways

There is no doubt that the implementation of the Ordinance is a welcome development and will enhance the collaboration between the courts in Hong Kong and in Mainland China. The parties to the marriage will be provided more certainty in enforcing judgment across the two jurisdictions. However, although the Ordinance provides clear mechanism in recognition and enforcement of the order, putting it into practice is another matter. As such, it is highly recommended that clients should seek advice from their lawyer when they face potential reciprocal enforcement issues.