Recognition and Enforcement of Family Court Orders between Mainland China and Hong Kong

Recognition and Enforcement of Family Court Orders between Mainland China and Hong Kong 1200 800 Hugill & Ip
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Recognition and Enforcement of Family Court Orders between Mainland China and Hong Kong

The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) (the “Ordinance”) came into force on 15 February 2022.

Pursuant to the Ordinance, Mainland Court Orders in family proceedings made after 15 February 2022 can be registered in Hong Kong. The Ordinance facilitates the enforcement of family Judgments or Orders handed down by Courts in the Mainland and Hong Kong respectively. It also covers lacunas related to the discrepancies between Hong Kong and Mainland Judgments in matrimonial matters.

Q1:       How does the Ordinance help in enforcing Mainland family Judgments in Hong Kong?

The Ordinance provides for a mechanism to register in Hong Kong specific Orders made by the Courts in Mainland China in matrimonial or family cases.

Once the Orders concerned are registered in Hong Kong, a party can start enforcement proceedings in Hong Kong regarding the terms of the Order.

Q2:      How do I apply to recognize a Mainland divorce in Hong Kong?

Under the Ordinance, you can apply to recognize a Divorce Certificate or a Mainland Court Order granting a divorce in Hong Kong. This is done by way of taking out an ex parte application to the District Court with an affidavit in support.

Further, you can also register Mainland Court Orders declaring that a marriage is invalid or for the annulment of a marriage.

Q3:    How do I enforce Mainland ancillary relief Orders in Hong Kong?

Firstly, you will have to apply to register the ancillary relief order in question. Only the Orders made by Mainland Courts in matrimonial/family proceedings specified in Schedule 2 of the Ordinance can be registered. They are called “maintenance-related orders” and they include:

  • Maintenance Orders for children, spouse, and for an adult person who cannot live independently
  • Orders related to the division of properties between the parties to a marriage. These include:
    1. Transfer / delivery of property order
    2. Lump sum order
    3. Vesting of property order
    4. A declaration that a property belongs to a party to the marriage.

Once the Orders are registered, you can take out enforcement proceedings in Hong Kong for the said Orders and they will be treated as if they had been handed down by Hong Kong Courts. Common enforcement orders include charging orders, garnishee orders, attachment of income orders, etc.

If there are properties in Hong Kong which the Mainland Order fails to deal with, once the Divorce Certificate and the relevant ancillary relief Orders are registered, you can also apply for the Hong Kong Courts to deal with those properties under Part IIA of Matrimonial Proceedings and Property Ordinance (Cap 192).

Q4:      How do I enforce Mainland child Orders in Hong Kong?

Again, the first step is to apply to register the child Orders. They are called “care-related orders”. As set out in Schedule 2 of the Ordinance, you can register the following care-related orders in Hong Kong:

  • Custody Order
  • Guardianship Order
  • Access Order
  • Order for the protection of the person from domestic violence

Further, you can also register custody orders in Hong Kong in relation to an adult person who cannot live independently.

Once the child Orders are registered, you can proceed to take out applications in the Hong Kong Courts regarding the said Orders.

Q5:      Is there a time limit for me to take out registration and enforcement applications for Mainland Orders in Hong Kong under the Ordinance?

Yes. For care-related orders, you can always register them as long as they have been duly complied with. However, if there has been any non-compliance, you will have to register them within 2 years after the first incident of non-compliance.

For maintenance-related orders, you can only register them if there has been non-compliance. Again, you will have to them within 2 years after the first incident of non-compliance.

Late applications have to be approved by the Court.

Q6:      How do I enforce a Hong Kong Court Order in the Mainland?

The Ordinance allows for a party to apply for a certified copy of the relevant Hong Kong Court Order or Judgment from the relevant Hong Kong Court granting the same at a prescribed fee of HK$125. You can then take the certified copy to the Mainland and seek to enforce it pursuant to the relevant PRC laws.

Q7:      What happens if my spouse takes my child to Mainland China without my prior consent? What can I do to get my child back?

Before the Ordinance came into force, there was no way to directly enforce a Hong Kong Court Order regarding the custody of a child and ordering for the child to be returned (i.e. a “Return Order”). Separate applications have to be taken out in the Mainland, for which the Mainland Courts will exercise their independent judgment.

However, since the Ordinance came into force, you can now apply for the custody of a child and a Return Order in Hong Kong in these circumstances. The Order can be directly enforced in the relevant Mainland Court nearest to the child’s last known address. Time is always crucial in disputes involving children, so applications should be made as soon as possible.

Q8:      I obtained an adoption Order and adopted a child in Mainland. Is it valid in Hong Kong?

Yes. Adoptions in Mainland will continue to be given effect in Hong Kong pursuant to the Adoption Ordinance (Cap 290). The adoption order legally made outside Hong Kong has the same effect as if it is obtained here in Hong Kong.  Parents who obtained such adoption order should apply for the same to be registered under the “Adopted Children Register.

For information purposes only. Its contents do not constitute legal advice and readers should not regard this as a substitute for detailed advice in individual instances.

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