K. Reciprocal enforcement of civil judgments of matrimonial and family cases in Hong Kong and Mainland China
On 15 February 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (“the Ordinance”) came into force.
This Ordinance allows the orders and judgements of family-related cases in Mainland China decided after 15 February 2022 to be recognised in Hong Kong courts, and vice versa. Essentially, it will make it more convenient for cross-border families or parties with assets in Hong Kong and Mainland China to enforce court orders and awards. The parties will not need to go to court again and argue on the same dispute in Hong Kong and in Mainland China. This will save a considerable amount of time and money used for litigation.
The Ordinance gives recognition in 3 general areas:
- Mainland judgments on care-related orders, status-related orders, and maintenance-related orders;
- Valid Mainland divorce certificates; and,
- Issue of certified copy of Hong Kong Judgments and certificate for Hong Kong Judgments so that it can be used and enforced in Mainland China.
Care-related orders are court orders that involve children under 18 years old. For example, this could be orders deciding which party has the custody of the child, who is the guardian of the child, who has access and the access schedule etc.
Status-related orders refer orders that involve the court declaring the parties are granted a divorce, or that the marriage is invalid. An order in relation to the parentage of a person also falls under this category.
Maintenance-related orders include maintenance for children under 18 years old, spousal maintenance, dependent persons who rely on a parties’ financial maintenance etc.
The scope of Hong Kong courts recognising Mainland judgements is wide since there can be many options when courts make a care-related or maintenance-related order. Courts in Hong Kong can give effect to Mainland judgements that order a transfer of a party’s property, payment of a sum of money to a party, and even declare which party the property belongs to. To recognize and enforce a Mainland judgment, the Mainland judgment must be registered in Hong Kong Courts. A party to a Mainland Judgment given in a matrimonial or family case may apply to the District Court for a registration order to register a specified order (i.e. care-related orders, status-related orders, or maintenance-related orders).
There is no exact time limit on when Mainland judgments should be registered as the date on which time begins running varies depend on the circumstances. Generally, registering the judgment within 2 years from its effective date is ideal.