4 August 2021
On 5 May 2021, the Legislative Council in Hong Kong passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (the “Ordinance”), implementing the Arrangement on Reciprocal Recognition & Enforcement of Civil Judgments in Matrimonial & Family Cases by the Courts of the Mainland & of the Hong Kong Special Administrative Region (Arrangement) signed between Hong Kong and the Mainland.
The provisions of the Ordinance can be divided into three parts:
A. Recognition and enforcement of Mainland judgments
The Ordinance allows parties to a Mainland judgment given in a matrimonial or family case to make a registration application to the Hong Kong District Court for a “specified order”, provided that the judgment is given on or after the commencement date of the Ordinance and is effective in the Mainland. A “specified order” includes the following:-
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Care-related orders, such as orders relating to custody and guardianship.
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Status-related orders, such as an order granting divorce and an order for the annulment of a marriage.
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Maintenance-related orders, such as orders relating to maintenance (including child and spousal maintenance) and division of property between parties to a marriage.
After an application for registration is made, the other party may apply to the court for the registration to be set aside within a specified time limit on the grounds set out in section 16 of the Ordinance, including but not limited to the following:-
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Provisions of the Ordinance have not been complied with.
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The judgment was obtained by fraud.
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A court in Hong Kong has given a judgment on the same cause of action between the same parties.
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Recognition or enforcement of the specified order is manifestly contrary to the public policy of Hong Kong.
Following a successful registration, the order may be enforceable in Hong Kong as if it were an order originally made by the registering Hong Kong Court and that the Court had jurisdiction to make it, and as if it were made on the day of registration of the order.
B. Recognition of Mainland divorce certificates
A party to a Mainland divorce certificate may make an application to the Hong Kong District Court for the certificate to be recognised. Similar to the registration procedure for Mainland judgments, the other party to the Mainland divorce certificate can apply to set aside the recognition within a specified time limit on the grounds set out in section 16 of the Ordinance. After a successful registration of the Mainland divorce certificate, it will be recognized as valid in Hong Kong.
C. Certification of Hong Kong judgments for purposes of recognition and enforcement in the Mainland
In the case of a judgment given by a Hong Kong court, a party may apply to the relevant Hong Kong court for the issuance of a certified copy of the judgment together with a certificate, certifying that the relevant judgment is given in a matrimonial or family case and is effective in Hong Kong. This process will facilitate the party in seeking to recognize and enforce Hong Kong judgments in the Mainland.
The Ordinance will come into effect after both Hong Kong and the Mainland have completed their respective internal procedures.
For further information, please contact:
Louise Yam, Hauzen LLP
info@hauzen.hk
