25 May 2021
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There has been a pressing need for the provision of law which recognizes and enforces family judgements from the Mainland in Hong Kong and vice versa. In June 2017, the respective governments agreed the “Arrangement on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases”. After 4 years of deliberation on both sides, this has now been finalized with the “Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill” (the “ Bill “) which was passed by the Legislative Council last week on 5th May. The Ordinance is expected to be published this week in the Gazette on 14th May.
This Bill provides 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:-
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Care-related orders concerning children, their custody, guardianship and access;
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Status-related orders concerning divorce and annulment as well as issues as to parentage; and
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Maintenance-related orders concerning child and spousal maintenance, division of property which includes payment of a lump sum, transfer of property and a declaration that property belongs to one party or the other.
Registration of the order in Hong Kong
There are detailed provisions in respect of how and when the registration can be made. The order must be enforceable on the Mainland, made by the appropriate court and not subject to an appeal. An application can be made to register the Mainland judgement by application to the District Court in Hong Kong after first obtaining a certificate from the Mainland court. With a care-related order or a status-related order, the application can be made straight away and should be made within two years of non-compliance. A maintenance related order can only be applied for on non-compliance.
Registration of a Mainland order can be set aside on certain grounds including situations whereby 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. In respect of applications concerning a child under the age of 18, the registering court must take into account the best interests of the child.
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.
If there are proceedings pending before the Hong Kong court relating to the same cause of action and the same parties, these will be stayed until the issue of registration of the Mainland order or setting aside application has been dealt with.
Also, the court has a discretion to make orders to maintain or restore the status quo, ensuring the welfare and best interests of a child or preventing an irremediable injustice. An exception to the restrictions on parallel proceedings is an application under Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192) where financial relief can be sought in Hong Kong after a foreign divorce.
Recognition of Mainland Marriage certificates in Hong Kong
If the District Court in Hong Kong is satisfied that the certificate of divorce is valid in the Mainland, it can make an order to recognize it. Consequently there have been amendments to the Matrimonial Causes Ordinance in the Bill. The other party to the Mainland divorce can apply to have this recognition set aside on grounds of fraud, the certificate is invalid or it is against public policy.
Recognition and enforcement of Hong Kong judgements in the Mainland
For a Hong Kong judgement made after the commencement of the Ordinance, one of the parties can apply for the Hong Kong court to issue a certificate, certifying that the judgement is effective in Hong Kong and to obtain a certified copy of the judgement.
The list of Hong Kong orders which can be made a subject of recognition and enforcement in the Mainland are found in Schedule 3 of the Bill. They include orders relating to divorce, financial provision and the transfer of property, orders relating to children including custody, wardship, adoption and legitimacy.
There are no details in the Bill as to the implementation of the enforcement and recognition of these order in the Mainland courts. Other than the provision for a certificate in Hong Kong to make the application to recognize or enforce a Hong Kong judgement or order in the Mainland court, the Bill relates to how Mainland orders can be recognized and enforced in Hong Kong. As explained in the Explanatory memorandum,” the purpose of issuing the certified copy and the certificate is to facilitate a party to the Judgement to seek recognition and enforcement of the judgement in the Mainland” but there is no explanation as to how this can be achieved.
In the Explanatory Memorandum, there is also a comment, in relation to the custody and wardship of children that the Bill “may include an order relating to access to a child or an order for the return or delivery of a child who has been wrongly retained in the mainland (other than in the context of an international child abduction case)”. However the Bill itself does not state that explicitly and there is concern that, as the Mainland is still not a signatory to the Hague Convention, children may not be adequately protected under the provisions of this new legislation.
It will be interesting to see what provisions are made on the Mainland for the registration and enforcement of judgements made in Hong Kong.
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