Today is a Big Day! After waiting for almost 4 years 8 months since 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” was signed between the Supreme People’s Court and the Hong Kong Government on 20 June 2017, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap.639) (“the Ordinance”) and the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Rules (Cap.639A) are to come into effect today – 15 February 2022.
The Ordinance is split into 3 parts dealing with (i) Registration in Hong Kong of Mainland Judgments Given in Matrimonial or Family Cases, (ii) Recognition in Hong Kong of Mainland Divorce Certificates and (iii) Facilitation of Recognition and Enforcement in Mainland of Hong Kong Judgments Given in Matrimonial or Family Cases.
I. Registration in Hong Kong of Mainland Judgments Given in Matrimonial or Family Cases
Care-related orders, Status-related orders and Maintenance-related orders in matrimonial or family cases made in a Mainland Judgment on or after 15 February 2022 can be registered in Hong Kong, after which they can be enforced/recognised as valid in Hong Kong as if they were originally made by the Hong Kong Court on the date of registration, subject to an application to set aside the registration. An application for registration may be made to the Family Court by way of Originating Summons with an affidavit in support. Once a registration order is made, the applicant shall draw up the registration order, and serve a notice of registration on all other parties to the Mainland Judgment.
II. Recognition in Hong Kong of Mainland Divorce Certificates
Mainland divorce certificates issued on or after 15 February 2022 can also be recognised as valid in Hong Kong with a recognition order, subject to such recognition being set aside. An application for recognition may be made to the Family Court by way of Originating Summons with an affidavit in support. Once a recognition order is made, the applicant shall draw up the recognition order, and serve a notice of the recognition order on the other party to the divorce.
III. Facilitation of Recognition and Enforcement in Mainland of Hong Kong Judgments Given in Matrimonial or Family Cases
The last part of the Ordinance provides for certification of Hong Kong Judgments for purposes of recognition and enforcement in the Mainland. A party in a matrimonial or family case (meaning a case where specified orders are made, such as maintenance orders, transfer or sale of property orders, custody/access orders, decree absolute of divorce/nullity, or injunction granted under the Domestic and Cohabitation Relationships Violence Ordinance, etc.) in which a Hong Kong Judgment is given on or after 15 February 2022 and effective in Hong Kong, may apply to the appropriate Hong Kong Court which gave the Hong Kong Judgment for a certified copy of the Judgment, such certified copy Judgment will be issued together with a Certificate. The certified copy Judgment and the Certificate can then be produced in the Mainland court for recognition and enforcement.
The Ordinance aims to solve the historical difficulty faced by cross-border families by offering a more costs-and-time-effective mechanism for enforcing and recognizing matrimonial and family judgments between the two jurisdictions. It should be particularly noted that the orders in relation to custody under a Hong Kong Judgment can cover an order for the return or delivery of a child who has been wrongfully removed (or abducted) from Hong Kong to the Mainland. This is a welcomed development, as previously there was no direct and immediate relief available to order the return of a child wrongfully removed to the Mainland, since Mainland China is not a contracting state under the Convention on the Civil Aspects of International Child Abduction.
We will keep a close eye on developments in this area and will share such developments with you in the near future.
This article is co-authored by our experienced SW Private Team –Partners Catherine Por, Wendy Lam, and Calvin Lo. Please contact Catherine Por, Wendy Lam or Calvin Lo for any further enquiries or information.
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