Mutual Enforcement of Divorce Judgments between the Mainland and Hong Kong： The Current Situation
In July 2006, Hong Kong and the Mainland Government signed the Arrangements for the Mutual Recognition and Enforcement of Civil and Commercial Judgments in the Courts of the Mainland and the Hong Kong Special Administrative Region” (“Mutual Enforcement of Judgment Arrangement”). The Mutual Enforcement of Judgment Arrangement provides for a mechanism for the judgment made by one party’s courts to be executed by the other party if certain conditions are met.
With the enactment of the Mainland Judgments (Reciprocal Enforcement) Ordinance (Chapter 597) in Hong Kong and the promulgation of relevant judicial interpretations by the Supreme People’s Court of the Mainland, the Mutual Enforcement of Judgment Arrangement has been implemented in both jurisdictions from August 1, 2008. However, the Mutual Enforcement of Judgment Arrangement only covers judgments regarding payment in commercial contracts, and does not cover family matters.
The existing legal mechanism in Hong Kong
(a) According to the Matrimonial Causes Ordinance (Chapter 179), divorce orders in the Mainland can be recognized in Hong Kong unless they are rejected by the Hong Kong courts for certain specified reasons, including failure to duly notify the other spouse of the proceedings or the other spouse having not been given the opportunity to participate in the relevant legal proceedings (Chapter 179, Article 61).
(b) According to the mechanism established by the Maintenance Orders (Reciprocal Enforcement) Ordinance (Chapter 188), a person in Hong Kong can apply for enforcement of maintenance orders made by a court of a designating reciprocating country, and a person in a designating reciprocating country can also apply to the courts of that country for the enforcement of maintenance order made by the Hong Kong courts. However, The Ordinance does not apply to mutual enforcement of maintenance orders between the Mainland China and Hong Kong because the People’s Republic of China is not among the designated reciprocating countries as provided by the Ordinance.
(c) The Hague Convention on the Civil Aspects of International Child Abduction has civil procedures aimed at returning children who have been improperly moved or detained in another contracting country to their home country as soon as possible. The relevant procedures are implemented in Hong Kong through the Child Abduction and Custody Ordinance (Chapter 512), but they do not apply to cases involving parental child abduction in the Mainland, because the Mainland China is not a signatory country of the Convention.
As for whether the Mainland recognizes the divorce order issued by the Hong Kong court, it is understood that the current Mainland law does not provide for this. The Mainland law also does not specifically provide for the enforcement of maintenance orders and custody orders obtained in Hong Kong in the Mainland.
(The above is from Materials on the Mutual Recognition and Enforcement of Marriage Judgment between Hong Kong and the Mainland issued by the the Hong Kong Legislative Council)
The arrangement for mutual recognition and enforcement of marriage and family civil judgments between Hong Kong and the Mainland
Hong Kong and the Mainland signed an important judicial assistance arrangement in 2017 The arrangement for mutual recognition and enforcement of marriage and family civil judgments between Hong Kong and the Mainland so as to mutually recognize and enforce the judgments of marriage and family civil cases made by the courts of the other party under certain conditions. It is anticipated that the taking effect of this arrangement would highly improve the efficiency of the mechanism of mutual enforcement of marriage and family related judgment between the two jurisdictions. However, although the agreement was signed, up to now the Hong Kong Legislative Council has not approved the agreement to take effect in Hong Kong, and the Supreme People’s Court of the Mainland has not made judicial interpretations on how the agreement will be implemented in the Mainland. Therefore, the agreement has not yet taken effect.
Regarding the marriage and family related legal matters in Hong Kong and the Mainland China, please do not hesitate to consult our lawyers of Divorce and Family Law Practice Team by sending email to [email protected]