The Legislative Council (LegCo) passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Ordinance) on Wednesday, which is a crucial step towards implementing 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” (Arrangement) signed between Hong Kong and the Mainland. I would like to express my gratitude to the chairperson of the Bills Committee and its members as well as stakeholders for their constructive suggestions to allow us to address society’s needs promptly by concretely implementing the Arrangement.
Based on statistics provided by the Judiciary, about 18% of the nearly 70,000 divorce cases filed by parties with the Hong Kong Family Court in the period from 2017 to 2019 involved marriages that took place in the Mainland, representing a yearly average of over 4,000 cases. However, Mainland law currently does not expressly provide that judgments given by the Hong Kong courts in matrimonial or family matters may be recognized and enforced in the Mainland. Similarly, judgments given by Mainland courts in matrimonial or family matters are generally not recognized and enforced in Hong Kong, save for some exceptions. Hence, there is indeed a pressing need to implement a bilateral arrangement between Hong Kong and the Mainland to provide for the reciprocal recognition and enforcement of judgments in matrimonial and family matters. Such an arrangement is in the interest of parties to cross-boundary marriages and their families as it provides effective judicial redress to the parties, as well as reducing the need for re-litigation of the same disputes, hence saving time and cost and reducing their emotional distress.
The provisions of the Ordinance can be divided into three parts:
(1) Recognition and enforcement of Mainland judgments
A party to a Mainland judgment given in a matrimonial or family case may make a registration application to the Hong Kong District Court for a specified order (which includes: orders relating to custody and guardianship of a child; orders granting divorce and orders for the annulment of a marriage; orders relating to the maintenance of a child, spousal maintenance and division of property between parties to a marriage) in the Mainland judgment. If the court is satisfied that the relevant requirements are met, it may order the registration of the specified order. However, the other party may apply to the court for the registration to be set aside before the expiry of the specified time limit. The applicant may apply to enforce the registered specified order after expiry of the time limit for the setting aside application or after the setting aside application has been finally disposed of.
(2) Recognition of Mainland divorce certificates
A party to a Mainland divorce certificate may make an application to the Hong Kong District Court for the certificate to be recognized. The procedures are largely similar to those applicable to the registration of Mainland judgments given in a matrimonial or family case.
(3) Facilitation of recognition and enforcement in the Mainland of Hong Kong judgments
In the case of a judgment given by a Hong Kong court, a party may make an application to the relevant Hong Kong court for the issuance of a certified copy of the judgment together with a certificate, certifying that the relevant judgment is given in a matrimonial or family case and is effective in Hong Kong. This will facilitate the party in seeking to recognize and enforce the relevant judgment in the Mainland court pursuant to the Arrangement.
The Department of Justice (DoJ) consulted the Panel on Administration of Justice and Legal Services of the LegCo in 2018 and 2019 on this matter. The members expressed support for the legislative proposal. A public consultation on the proposed legislation was also conducted in 2019, during which the majority of responses received were supportive. The DoJ had engaged key stakeholders, including family law practitioners and representatives from the social welfare sector, in the course of refining the bill.
With the passage of the Ordinance, parties to cross-boundary marriages and their children will be benefitted. By providing a more expeditious and cost effective mechanism for parties to apply to the Hong Kong courts for the recognition and enforcement of judgments given by the Mainland courts in matrimonial and family cases, this will reduce the need for divorce and related proceedings to be brought in both Hong Kong and the Mainland as well as mitigate the impact of a divorce on the parties to the marriage and their children and relieve their emotional stress. Very often women are the recipients of maintenance payments in divorce cases and are often the victims in domestic violence cases. By covering maintenance orders and orders for protection in cases of domestic violence, the Ordinance can help in addressing these issues and offer better protection to women and also help reduce their emotional stress. Besides, under the new mechanism of the Ordinance, in case a child in Hong Kong has been wrongfully removed to or wrongfully retained in the Mainland by a parent, the other parent can, on the basis of a relevant order made by the Hong Kong courts, seek assistance from the Mainland courts for the return or delivery of the child. This addresses the needs of Hong Kong society.
After the relevant court rules have been issued, DoJ will discuss with the Supreme People’s Court for the coming into operation of the Arrangement which will take place on the same date as the Ordinance. As regards the recognition and enforcement in the Mainland of Hong Kong judgments in matrimonial and family cases, the Supreme People’s Court will promulgate judicial interpretations to implement the Arrangement.
The successful implementation of the Arrangement once again demonstrates that Hong Kong and Mainland strive to foster mutual legal assistance in civil and commercial matters in accordance with the “one country, two systems” principle on the basis of mutual understanding and respect, so as to complement the needs that arise from social developments in both societies. The DoJ will continue to actively take forward work in this aspect. It is hoped that more good news will come in the near future.
May 6, 2021