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The Mainland Judgements in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) and corresponding Rules (Cap 639A) were enacted and came into operation on 15 February 2022 (“the Ordinance”).
The Ordinance is to provide for the recognition and enforcement in Hong Kong of judgments in matrimonial and family cases given in the Mainland and vice versa. It also allows Hong Kong to recognize Mainland divorce certificates, and for parties to apply for a certified copy of a Hong Kong judgment, so as to facilitate any enforcement actions in the Mainland.
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. It also allows parties convenient and timely access to effective judicial relief, with their rights better protected in both jurisdictions.
The Ordinance establishes mechanisms in respect of three types of applications in Hong Kong, as follows:-
(1) Registration of specified orders made in China in Hong Kong courts
The Ordinance provides detailed guidance for the registration of specified orders made in the Mainland to be registered in the Hong Kong courts. They cover three main types of order:
- Care-related orders such as orders in relation to children’s custody, guardianship and right of access;
- Status-related orders such as orders granting divorce or parentage; and
- Maintenance-related orders such as orders in relation to spousal or children maintenance and division of property.
There are detailed provisions in the Ordinance in respect of how and when an application for registration can be made. The specified orders must be given on or after 15 February 2022 and are effective in the Mainland. A registration application shall be made to the Hong Kong Family Court supported by an affidavit with details about the Mainland orders/judgment. For registration concerning care-related or maintenance-related orders, any application shall be made within a time limit of two years. The applicant must serve a notice of registration on all other parties to the Mainland judgment.
Setting aside an application
Registration of a Mainland order can be set aside on certain grounds including where a party has not had sufficient time or opportunity to make submissions, if there has been fraud, or proceedings have already started in a Hong Kong court or a judgment has already been given by a Hong Kong court or elsewhere in respect of the same cause of action between the same parties or if the judgement has been subject to appeal. The registration will also be set aside if the recognition or enforcement of the specified order is manifestly contrary to the public policy of Hong Kong.
Effect of registration
Once the care or maintenance related orders have been registered, they will be enforceable in Hong Kong as if they had been originally made in Hong Kong. A status-related order will be recognized as valid on registration, so long as the time limit to apply to set aside has expired.
It is important to note that the Ordinance seeks to restrict and minimize parallel proceedings in Hong Kong for the same cause of action between the same parties by providing for proceedings pending before a Hong Kong Court to be stayed, and by prohibiting the commencement of new proceedings in Hong Kong, pending final disposal of a registration application (or an application to set aside the registration, as the case may be).
However, one exemption to this “anti-parallel proceedings” rule will be proceedings under Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192) which is concerned with seeking financial relief in Hong Kong in a foreign divorce.
(2) Recognition of Mainland divorce certificates in Hong Kong
Applications can now be made in relation to Mainland divorce certificates issued by the civil affairs departments in the Mainland if the certificates are issued on or after 15 February 2022. The application shall be made to the Hong Kong Family Court supported by an affidavit.
If the Family Court is satisfied that the certificate of divorce is valid in the Mainland, it would make a recognition order for the Mainland divorce certificate to be recognized. The other party to the Mainland divorce can apply to have this recognition order set aside on the grounds of fraud, the certificate is invalid, or it is against public policy.
(3) Applications for certified copy of Hong Kong judgments given in family cases
Applications may be made in relation to Hong Kong judgments given in family cases if the judgments are made on or after 15 February 2022 and are effective in Hong Kong. The list of Hong Kong orders which can be made a subject of recognition and enforcement in the Mainland are extensive and are listed in Schedule 3 of the Ordinance. They include orders relating to divorce, financial provision and the transfer of property, orders relating to children including custody, wardship, adoption and legitimacy and orders and injunctions made pursuant to the Domestic and Cohabitation Relationships Violence Ordinance.
Child removal cases
One major breakthrough of the Ordinance is concerned with child removal cases. Before the enactment of the Ordinance, seeking the return of children who were wrongfully removed to or retained in the Mainland had always been difficult given China is not a member to the Hague Convention.
This concern was articulated in a judgement handed down in June last year, i.e. before the Ordinance came into law. The Judge in that case declined to allow the removal application made by the father as there was a ‘genuine and real chance that the orders given and/or undertakings accepted by the Hong Kong court will not be recognized by the PRC court, in which event the best interest of [the child] will not be protected and/or safeguarded’.
However, with the new Ordinance coming into force, there are now clearer mechanisms and commitments from both jurisdictions to deal with child removal cases. It is clear in the Ordinance that an order in relation to custody (including an order relating to access to a child), or an order for the return or delivery of a child who has been wrongfully removed from Hong Kong to the Mainland or wrongfully retained in the Mainland can be enforced in a PRC court.
The new Ordinance signifies a new milestone in mutual legal assistance in family matters between the Mainland and Hong Kong. It establishes a more expeditious and more cost-effective mechanism for reciprocal recognition and enforcement of judgments given in family cases between the two jurisdictions. This new judicial endeavor will certainly benefit parties to cross-border marriages, families and their children.
For further information, please contact:
Jocelyn Tsao, Partners, Withersworldwide
jocelyn.tsao@withersworldwide.com
Fiona Fung, Associate, Withersworldwide
fiona.wong@withersworldwide.com
Billy Ko, Partner, Withersworldwide
billy.ko@withersworldwide.com
Philippa Hewitt, Senior Knowledge Lawyer, Withersworldwide
philippa.hewitt@witherskhattarwong.com
