Introduction

The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) and the Rules (Cap. 639A) (the collectively, the “Ordinance”) came into effect on 15 February 2022, allowing cross border divorce to be streamlined under reciprocal recognition arrangement and marking a milestone for enhanced cross border legal cooperation between Hong Kong and Mainland China (the “PRC”). It has been more than a year since the enactment of the Ordinance, but there have not been much judicial decisions to provide insight on the application of the mechanism set out under the Ordinance. This article examines 朱 v 劉 (FCMC 8529/2021, unrep.,4 November 2022) (the “Case”) which involves discussion of the Ordinance when the Court was tasked to decide on a jurisdictional challenge. In light of the manifold queries we receive from the PRC on whether it is possible to divorce in Hong Kong, we also use this article as an opportunity to clarify this issue.

Key features of the Ordinance

The Ordinance is split into 3 parts dealing with (i) registration in Hong Kong of mainland judgments given in matrimonial or family cases, (ii) recognition in Hong Kong of mainland divorce certificates and (iii) facilitation of recognition and enforcement in mainland of Hong Kong judgments given in matrimonial or family cases. For a more detailed analysis of the Ordinance, please click here.

Factual background of the Case

Both the wife and the husband were born in Mainland China. The parties were married on 15 October 2007, in Futian District of Shenzhen. It is the wife’s case that soon after they got married, they already planned to migrate to Hong Kong. Although the parties’ application under the Quality Migrant Admission Scheme of Hong Kong was approved in 2010, the parties remained residing in Shenzhen since their daughter’s birth in 2009. A second child, the son, was born in Hong Kong in 2011 but the son was arranged to be cared for by the maternal grandparents in Hunan of PRC, the home province of the wife. The husband relocated to Hong Kong with his children in 2013 and domiciled in Hong Kong until 2019, he left with the children to Canada. The wife predominantly remained in Shenzhen, while visiting the husband and the children in Hong Kong occasionally.

Following the dismissal of a divorce petition filed with the Yantian Court of the PRC (“Yantian Court”) in early 2021, six months later in 2021, the parties took out a petition in Hong Kong (the “Petition”). The husband further took out a second divorce application in the Yantian Court in November 2021, which was transferred to the Shenzhen Luohu District People’s Court, PRC (“the Luohu Court”) for determination, but it was dismissed in September 2022.

The jurisdictional issue

The Court’s jurisdiction

Under section 3 of the Matrimonial Causes Ordinance (Cap. 179), the court shall have jurisdiction in proceedings for divorce if (a) either of the parties to the marriage was domiciled in Hong Kong at the date of the petition; (b) either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition; or (c) either of the parties to the marriage had a substantial connexion with Hong Kong at the date of the petition. All circumstances must be considered especially when dealing with the issue of substantial connection as it is a highly fact-sensitive issue. The wife seeks to establish the Court’s jurisdiction by referring to (i) the husband’s domicile in Hong Kong; (ii) the husband’s substantial connection with Hong Kong; or (iii) the wife’s substantial connection with Hong Kong, adopting a catch-all approach by encompassing at least two of the grounds mentioned above.

The Court’s decision

The Court was not satisfied that the wife has proven on the balance of probabilities that the Hong Kong Courts have jurisdiction over the Petition. The Court took into account the fact that the husband had already provided a new family life for himself and the Children in Canada, while the wife failed to establish that she had conducted a family life with the husband and the children in Hong Kong.

The forum issue

The dispute

For the sake of completeness, the Court moved on to address forum. The issue in dispute is which court would be the more appropriate forum in the current case. The husband argues in favour of Luohu Court while the wife contends that Hong Kong would be the more appropriate forum. 

The test in Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) [1987] AC 460 remains to guide the Court’s approach in deciding forum. If the applicant for the stay is able to establish that first, Hong Kong is not the natural or appropriate forum, and second, there is another available forum which is clearly or distinctly more appropriate than Hong Kong (Stage 1) , the plaintiff in the Hong Kong proceedings has to show that he or she will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong (Stage 2), finishing off with a balancing exercise if the plaintiff succeeds in his or her argument in Stage 2 (Stage 3). 

Relevance of the Ordinance and the Court’s findings

The wife bears the burden to prove that there would be a personal or juridical advantage which the wife would be deprived of if the matter is being proceeded in the Luohu Court. In arguing that none of the above would arise, the husband made specific reference to the Ordinance which strives to provide for a clear mechanism to facilitate the enforcement of financial orders made in the PRC to be registered in Hong Kong. Specifically, the Court is tasked to decide on the financial matters concerning the landed properties in the PRC. That said, the Court did not accord much force to the Ordinance. While the practical value of the Ordinance is appreciated, the Court specifically remarked that the Ordinance is not considered “as relevant” in the analysis of the issue. The Court determined the issue by considering whether it would be more straight-forward to have disputes concerning PRC assets to be resolved in the PRC and whether the relevant persons could or would testify in the Luohu Court and last, whether legal representations have been engaged to handle the same. The Court concluded that the Luohu Court would be the appropriate forum.

Key takeaways

It is apparent from the Case that the Court prefers to decide on matters involving a jurisdictional challenge by adopting the traditional test on forum and putting the emphasis on the practical aspects to consider on a case-by-case basis. Despite the potential benefits and advancements offered by the Ordinance, to date there is yet to be any notable judicial efforts being made to implement the effect of the Ordinance in detail even when cross border issues are clearly engaged. Overall, it is still unclear how much weight the Court will give to the Ordinance, despite appreciating its practical value, or whether the Court would prefer to adopt a more conservative route when deciding on the issue of jurisdiction and/or forum and upholding established practices. As such, it is highly recommended that clients should seek advice from their lawyer when they face potential reciprocal enforcement issues.