Reciprocal recognition and enforcement of Mainland and Hong Kong judgments in matrimonial and family cases

January 2022

Cross-border marriages and families with ties or assets in both Hong Kong and the Mainland are becoming a common phenomenon in Hong Kong. In order to deal with cross-border matrimonial and related disputes more efficiently, the Supreme People’s Court and the Hong Kong SAR Government entered into 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 SAR (“Arrangement”) on 20 June 2017. The Arrangement is implemented in Hong Kong by way of legislation which will become effective on 15 February 2022, while the Arrangement will be implemented in the Mainland by way of judicial interpretation to be promulgated by the Supreme People’s Court.

The Ordinance

To give effect to the Arrangement, the Legislative Council in Hong Kong passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill on 5 May 2021.

The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (“Ordinance”) provides for recognition and enforcement in respect of cases falling into the following three categories:

A party to a Mainland judgment given in a matrimonial or family case may make application for registration of specified orders, including care-related orders, status-related orders and maintenance-related orders under Part 2 of the Ordinance.
A party to a divorce specified in a Mainland divorce certificate issued on or after the commencement of the Ordinance may apply for recognition of the Mainland divorce certificate under Part 3 of the Ordinance.
Part 4 seeks to facilitate recognition and enforcement of Hong Kong judgments in matrimonial or family cases in the Mainland. A party to a Hong Kong judgment given in matrimonial or family cases may apply for certified copy of and certificate for the Hong Kong judgment under Part 4 of the Ordinance.

The Rules

The HKSAR Government published in the Gazette “the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Rules” (the “Rules”) and Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Commencement Notice) on 27 August 2021. The Ordinance and the Rules will both come into operation on 15 February 2022.

The Chief Judge of the High Court made the Rules under section 40 of the Ordinance formulating the mechanisms for recognition and enforcement under the Ordinance. Part 2, Part 3 and Part 5 of the Rules provide for the procedures relating to the applications under the Ordinance, while Part 6 sets out the fees payable under the Ordinance.

According to Part 2 and Part 3 of the Rules, applications for registration of orders in Mainland judgments given in matrimonial or family cases (“registration applications”) and applications for recognition of Mainland divorce certificates (“recognition applications”) may be made ex parte to the District Court. Rules 5-10 and 17 also state the requirements in relation to the affidavits in support of the applications such as the content of the affidavits and the necessary supporting documents.

Part 4 of the Rules covers the practice and procedure for an application to execute registered orders. According to Rule 23, a party to a Mainland judgment who wishes to issue execution on a registered order has to produce to the Registrar an affidavit of service of the notice of registration of the order, an affidavit in support, and any order made by the Court in relation to the registered order.

Regarding applications for certificates for Hong Kong judgments (including certified copy thereof) for recognition and enforcement in the Mainland, Rule 25 in Part 5 has set out the requirements of the affidavit for such application.

Comments

The new legal regime for recognition and enforcement of matrimonial judgments and orders is a significant step in the building of legal infrastructure for the Greater Bay Area (“GBA”). With mutual recognition and enforcement procedures made available by the Ordinance and the Rules, the need for re-litigation in matters that have already been decided by the Courts of the Mainland or Hong Kong will be reduced. This will also save time and resources for the parties (as well as that of the Courts on both sides). The Ordinance offers an expeditious and cost-effective way of handling cross-border orders and judgments. The emotional distress of the parties to such family disputes may also be alleviated.

However, the new legal regime may also lead to competition between matrimonial and family law practitioners in two different jurisdictions. With the mechanisms for reciprocal enforcement established under the Ordinance, some parties may be able to choose in which jurisdiction they would make their claims, which may somehow create an incentive for “forum shopping”.

Hong Kong family law practitioners should be prepared to advise their clients on the ramifications of the Ordinance.