20 June, 2019
Introduction
Cross-border marriage between individuals from Hong Kong and Mainland China has become increasingly common in recent years, as Hong Kong and the Mainland have developed closer ties in economic and cultural fields. There are approximately 50,000 marriages registered each year in Hong Kong, of which about one-third are cross-border marriages. There are some 20,000 divorce applications each year.
The laws and procedures dealing with family matters differ enormously between Hong Kong and Mainland China. The recognition and enforcement of civil judgments in family cases in Hong Kong and Mainland China have long been faced with difficulties. In view of this, on 20 June 2017, the Supreme People’s Court and the Hong Kong Government entered into an “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), with the aim of developing a workable mechanism for reciprocal recognition and enforcement of civil judgments in matrimonial and family cases in Hong Kong and Mainland China.
The Arrangement will come into effect on a date to be announced by the authorities of Hong Kong and Mainland China, upon completion of internal procedures. In the Mainland, the Arrangement will be implemented by way of a judicial interpretation, to be handed down by the Supreme People’s Court, whereas in Hong Kong the Arrangement will be implemented by way of legislation.
In Hong Kong, the “Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill” (Bill) and the relevant rules (Rules) have been drafted by the Department of Justice. A public consultation was completed on 8 March 2019.
The Bill seeks to lay down the provisions for the registration of Mainland judgments in Hong Kong, recognition of Mainland divorce certificates, and certification of Hong Kong judgments for the purpose of seeking recognition and enforcement in the Mainland. The Rules establish the rules and procedures for applications to a Hong Kong court for such recognition.
The following is a comparison of three main aspects common to matrimonial or family cases in Hong Kong and Mainland China.
Grounds and procedures for divorce in Hong Kong and Mainland China
Hong Kong
Applications for divorce are handled by the Family Court. Under section 3 of the Matrimonial Causes Ordinance (Cap. 179), the court has jurisdiction in proceedings for divorce if either of the parties to the marriage:
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a. |
was domiciled in Hong Kong at the date of the petition or application; |
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b. |
habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or |
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c. |
had a substantial connection with Hong Kong at the date of the petition or application. |
In several recent cases (Wong v Lau [2019] HKFC 8; Z v P [2019] HKFC 27), a party to the marriage domiciled in Hong Kong petitioned for a divorce, but the court ruled that the courts of Hong Kong did not have jurisdiction over the proceedings because at the date of the petition both parties to the marriage primarily lived and worked in Mainland China, with which they had a substantial connection.
Under Part III of the Matrimonial Causes Ordinance (Cap. 179), a petitioner must prove that he/she has reason to believe that the marriage has broken down irretrievably and satisfy the court of one or more of the following facts:
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The spouse has committed adultery and the petitioner finds it intolerable to live with him/her; |
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The spouse has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her; |
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c. |
The petitioner and his/her spouse have lived apart for a continuous period of at least 1 year immediately preceding the presentation of the petition and the spouse consents to a divorce; |
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d. |
The petitioner and his/her spouse have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition; |
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e. |
The spouse has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition. |
Where an application for divorce is made jointly by both parties, the court must be satisfied that (i) they have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; or (ii) not less than 1 year prior to the making of the application a notice signed by each party was given to the court and that the notice was not subsequently withdrawn.
Mainland China
There are two ways to seek a divorce: (1) by way of agreement or (2) by way of legal action.
Under sections 10 and 12 of the Marriage Registration Ordinance, the following three conditions must be met for parties seeking a divorce by way of agreement:
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The place of registration of marriage was Mainland China; |
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Neither party to the marriage is an incapacitated person or a person lacking full capacity; and |
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The parties have reached a divorce agreement, including an express representation by both parties of voluntary divorce and consensus on children’s custody and handling of matters such as assets and debts. |
Where all three conditions above are met, parties to the marriage may proceed to the marriage registration authorities (the local civil affairs bureau) of either party’s place of abode for divorce registration.
In cases where not all three conditions above are met, parties to the marriage must file for a divorce with a court of either party’s place of abode.
In general, a divorce will be granted if the court is satisfied that the relationship between the parties has broken down. Under section 32 of the Marriage Law, a divorce will be granted by the court if either party commits bigamy, cohabits with another person, commits domestic violence or maintains bad habits (such as gambling or drug abuse); or if the parties are in an unharmonious relationship and have lived apart for 2 years; or there exists other circumstances leading to the breakdown of the parties’ relationship.
However, a man cannot seek to divorce his wife during her pregnancy, within one year after delivery or within six months after termination of a pregnancy. Where a party to the marriage is an active duty service member and his/her spouse seeks a divorce, the service member’s consent is generally required for a divorce to be granted by the court.
Handling of assets in Hong Kong and Mainland China
Hong Kong
When handling applications for ancillary relief, a court usually first considers the matters under section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), namely:
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earning capacity and properties owned; |
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financial needs and obligations; |
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standard of living enjoyed by the family before the breakdown of the marriage, age of the parties and the duration of the marriage; |
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any physical or mental disability; |
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e. |
contributions made to the welfare of the family; and |
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value of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. |
Details of the application of and legal principles behind section 7 are found in the Court of Final Appeal judgment in LKW v DD [2010] 13 HKCFAR. The Court of Final Appeal agreed with the just and equitable principle of allocation laid down in the English judgment in White v White [2001] 1 AC 596. The Court of Final Appeal laid down four principles and five steps for applications for ancillary relief:
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The four principles: i. to achieve fairness as the objective; ii. all types of discrimination are disapproved of; iii. balanced allocation; and iv. restrospective investigation is disapproved of. |
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The five steps: i. determination of assets; ii. assessment of the economic needs of both parties iii. the decision to apply the 50-50 sharing principle; iv. grounds for not applying the 50-50 sharing principle; and v. determination of allocation result. |
Mainland China
Under the Marriage Law and the judicial interpretation of the Supreme People’s Court, property owned by a party to a marriage prior to the marriage remains the property of that party, whereas property acquired by a party after marriage is considered to be jointly owned property, to which the parties are equally entitled in the event of a divorce. Where either party experiences financial hardship after a divorce and is unable to maintain basic local living standards, the court has the right to order the other party to provide financial assistance to the party in need. Where either party becomes homeless after a divorce, the court also has the right to order the other party to grant the right of residence or ownership to the party in need.
Division of assets upon divorce is generally handled by the court in accordance with an agreement reached by the parties. Where either party has made a greater contribution towards the care of the children, of elderly relatives or of their spouse during the subsistence of the marriage, that party may request compensation from the other party.
Where the parties fail to reach an agreement regarding the handling of jointly owned assets, the court will, according to the circumstances and with the aim of protecting the interests of the children and wife, make the order it considers appropriate.
Children’s custody in Hong Kong and Mainland China
Hong Kong
Under the Guardianship of Minors Ordinance (Cap. 13), the Family Court regards the best interests of the minor as the first and paramount consideration when it makes decisions regarding the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held on trust for a minor or the application of the income of any such property. In having such regard, the court must give due consideration to the views of the minor and any material information including any report of the Director of Social Welfare.
The court may grant to the parties to the marriage the (joint/sole) custody of the children, the right to care and control of the children, and (reasonable / defined) rights of access to the children.
The court usually imposes a restriction on the removal of children from Hong Kong, unless an application is made and granted for their removal.
Divorce has a substantial impact on individuals and on a family, particularly the children. The court is greatly concerned with maintaining communications and connection between children and their parents. In several recent high-conflict family cases, orders have been made by the court for the engagement of coordinators and “parent-child contact” services so that children may keep in touch with their divorced parents in a safe and conflict-free environment.
Mainland China
Under section 36 of the Marriage Law, divorced parents have the right and duty to educate and take care of their children. Mothers are given custody of children who they are breastfeeding. The custody of minors or physically dependent children is decided by the People’s Courts after taking into account the children’s interests and actual circumstances. For instance, it is provided under sections 1 and 5 of the “Opinions of the Supreme People’s Court regarding the custody of children in divorce cases heard by the People’s Courts” and section 65 of the “Guide to trial of matrimonial cases involving domestic violence” that mothers are in general given custody of children under the age of 2 and that the custody of minors above the age of 10 is to be decided by the courts after consideration of the children’s views and other factors such as the existence of domestic violence.
Conclusion
As can be seen from the comparison above, the laws and procedures governing matrimonial and family cases in Hong Kong and Mainland China are different and yet share the same principle of protection of all family members’ welfare and effective resolution of disputes. In view of the close-knit relationship between the communities in Hong Kong and Mainland China, as well as the rapid development of the Greater Bay Area, the number of cases involving cross-border matrimonial or family disputes is expected to grow, fueling greater demand for reciprocal recognition and enforcement of civil judgments in matrimonial and family matters by the courts of Mainland China and Hong Kong. It is hoped that the implementation of the Arrangement will become effective as soon as possible, to provide stronger protection for parties to cross-border marriages and their children.
For further information, please contact:
Cecilia Lau, Deacons
cecilia.lau@deacons.com.hk
