Big Step on Enforcing Mainland Judgment in Hong Kong
On 5 May 2021, the Legislative Council passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill (“the Bill”).
Currently, there is no legal framework allowing for judgments and orders made in matrimonial and family cases in Hong Kong and in Mainland China to be mutually recognised and enforceable across the jurisdictions. Litigants in matrimonial and family proceedings who are facing the cross-boundary jurisdictional limitations often find it hard to settle their disputes in an effective and definitive manner.
In view of such challenging enforcement issues and the often interrelatedness between matrimonial and family proceedings in Hong Kong and in Mainland China, the HKSAR Government and the Supreme People’s Court of the PRC signed 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” (“the Arrangement”) on 20 June 2017. After four years of preparations and legislative deliberations, the Arrangement is now ready to be implemented as part of the local legislation in Hong Kong.
Following the passing of the Bill, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (“the Ordinance”) will bring about the following impacts once it comes into operation:
– Recognition and enforcement of Mainland judgments in Hong Kong by way of registration
Applicable scope: The Ordinance applies to three types of “Specified Orders” given in Mainland judgments, namely:
– Care-related Orders (e.g. orders relating to custody and guardianship of a child and right of access of a parent);
– Status-related Orders (e.g. orders granting a divorce or annulment of a marriage); and
– Maintenance-related Orders (e.g. orders relating to child’s maintenance, spousal maintenance and division of property between parties to a marriage).
Registration requirements: A party to a Mainland judgment can register a Specified Order in Hong Kong provided that the judgment is given on or after the commencement date of the Ordinance and is effective in the Mainland. A judgement is effective in the Mainland if it is enforceable in the Mainland and is given by the Supreme People’s Court, a Higher People’s Court, an Intermediate People’s Court or a Primary People’s Court (in case of a first instance judgment, it needs to be non-appealable according to PRC law, or the time limit for appeal thereof has expired with no appeal being filed).
Setting aside registration: After an application for registration is made, the other party of the Mainland judgment in question can apply to set aside the registration within a specified time limit on various grounds, including that the registration requirements set out in the Ordinance have not been complied with, the judgment was obtained by fraud, a Hong Kong Court has already given a judgment on the same cause of action between the same parties, etc.
Enforcement effect of registration: Once successfully registered, the order may be enforceable in Hong Kong as if it were an order originally made by the registering Hong Kong Court and that Court had jurisdiction to make it, and as if it were made on the day of registration of the order.
– Recognition of Mainland divorce certificates in Hong Kong
Recognition order: Upon an application made by a party to a divorce specified in a Mainland divorce certificate issued on or after the commencement of the Ordinance, the District Court may, if it is satisfied that the certificate is valid in the Mainland, make an order that the certificate be recognised.
Setting aside recognition order: Similarly, the other party to the Mainland divorce in question can apply to set aside the recognition within a specified time limit, on the ground that the certificate was obtained by fraud, that the certificate is invalid, or that the recognition is manifestly contrary to public policy.
Effect of recognition: When a recognition order made by the District Court takes effect, the divorce specified in the Mainland divorce certificate is recognised as valid in Hong Kong.
– Facilitation of recognition and enforcement of Hong Kong judgments in the Mainland
Certified copy of judgment and certificate: Upon the application by a party to a Hong Kong judgment in a matrimonial or family case given on or after the commencement of the Ordinance, the corresponding Hong Kong Court can issue a certified copy of the judgment and a certificate certifying such judgment as effective in Hong Kong. These certified documents serve to facilitate the recognition and enforcement of Hong Kong judgments in the Mainland.
The exact mechanism of recognition and enforcement of Hong Kong judgments in the Mainland pursuant to the Arrangement would remain to be seen. According to an article written by the Secretary for Justice on 6 May 2021, after the passing of the Bill, the Department of Justice will discuss with the Supreme People’s Court on the formal commencement date of the Arrangement. The Ordinance will also take effect on the same date. The Supreme People’s Court will be responsible for promulgating judicial interpretations to implement the Arrangement and allow for Hong Kong judgments in matrimonial and family cases to be recognised and enforcement in the Mainland.
As can be seen above, the Ordinance now mainly provides for a set of established procedures pursuant to which Mainland judgments in matrimonial and family cases can be recognised and enforced in Hong Kong. At this stage, it is anticipated that this new legal arrangement will prove to be particularly relevant when, for example, a counterparty to the Mainland proceedings has assets or income which could be subject to execution in Hong Kong, or a child concerned is or will be located in Hong Kong. It will not come as a surprise that more and more litigants facing the existing Hong Kong-PRC enforcement limitations will seek to rely on this Ordinance. We will pay close attention to this novel development of matrimonial and family law.
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Written by: Elsie Liu, Partner