31 May 2021
In our previous article, we outlined the features of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill. On 5 May 2021, the Bill was passed by the Legislative Council. The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, will give effect to the “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” (Reciprocal Arrangement) signed between Hong Kong and the Mainland in 2017. The Ordinance provides more expeditious and cost effective judicial redress to divorcing parties of cross-boundary marriages and their families.
Provisions of the Ordinance
The provisions of the Ordinance are broadly divided into three parts, including:-
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Recognition and enforcement of Mainland judgments with specific orders (i.e. care-related orders, status-related orders and maintenance-related orders) given in matrimonial or family cases by way of registration with the Hong Kong District Court;
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Recognition of Mainland divorce certificates by way of application to the District Court; and
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Facilitation of the recognition and enforcement of Hong Kong judgments in the Mainland by way of application to the relevant Hong Kong Court for a certified copy of the judgment and a certificate certifying that the judgment is given in a matrimonial or family case and is effective in Hong Kong.
In short, the Reciprocal Arrangement will reduce the need to re-litigate the same dispute in both Hong Kong and the Mainland, since a judgment in a matrimonial and family case given in either place will be regarded as valid and enforceable in the other place, after relevant recognition and enforcement court procedures have been followed.
Commencement Date of the Ordinance
The Secretary for Justice wrote on her blog on 6 May 2021 that the Department of Justice will discuss with the Supreme People’s Court the commencement date of the Reciprocal Arrangement, on which date, the Ordinance will also come into operation. The Supreme People’s Court will promulgate judicial interpretations to implement the Reciprocal Arrangement as regards the recognition and enforcement of Hong Kong judgments in matrimonial and family cases in the Mainland.
Effect of the Ordinance
We anticipate that the new mechanism will result in better prospects of conclusive outcomes in cross-boundary divorce cases, as the long-standing hurdles of jurisdictional differences and enforcement limitations between Hong Kong and the Mainland will largely be eliminated under the Reciprocal Arrangement.
We expect that protection in relation to custody of children and execution of parties’ assets will be more effective. More particularly, where custody of a child is granted to a party in Hong Kong and the counterparty later removes the child from Hong Kong or retains the child in the Mainland, under the new Reciprocal Arrangement, the party in Hong Kong will be able to seek assistance from the Mainland courts for the return or delivery of the child pursuant to the orders relating to custody of the child granted by the Hong Kong courts, or vice versa.
It is hoped that in cases where the parties’ substantial assets are believed to be in the Mainland, but the petitioner/applicant is living and suing in Hong Kong, the Reciprocal Arrangement will relieve much of the time and cost of traveling and emotional stress, and, more importantly, remove the current limitation in enforcing the relevant orders in the Mainland.
What remains uncertain is the exact mechanism for recognition and enforcement of Hong Kong orders in the Mainland including, for example, to which court in the Mainland the application should be made, where for instance, assets are located in a number of different provinces and whether this will entail multiple applications.
Experience shows that cross-boundary divorce disputes are usually costly and time-consuming. The operation of this bilateral arrangement between Hong Kong and the Mainland is expected to address current predicaments encountered by divorcing parties. We will provide further updates about the mechanism for reciprocal recognition and enforcement of judgments in the two jurisdictions.
For further information, please contact:
Cecilia Lau, Deacons
cecilia.lau@deacons.com.hk
