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New law addresses cross-border divorce

By Allison Lee

Hong Kong, 9 December 2021: Almost a fifth of divorce cases filed in Hong Kong involve marriages that took place in the Mainland. On average, more than 4,000 cross-border couples per year seek to have their marriages ended via the courts here.

But this is just the tip of the iceberg; the family courts in Hong Kong hear thousands more cross-border cases involving such matters as custody and guardianship of children, maintenance orders and division of property. Until now, the lack of mutual recognition between the Hong Kong and Mainland courts has made the process more costly and time-consuming, thus exacerbating the emotional stress for the parties involved.

However, this will change on 15 February 2022 when the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance comes into effect. The new law will speed up procedures, cut down on paperwork and reduce the need for re-litigation in the same disputes.

Background

Authorities on both sides of the border have long recognised how matrimonial and family matters between Hong Kong and the Mainland are closely intertwined and that enforcement issues present a significant challenge. In this regard, the Department of Justice and the Supreme People’s Court of the PRC signed a mutual arrangement in 2017 to pave the way for legislation.

The Department of Justice conducted a public consultation in 2019 and engaged key stakeholders, including family law practitioners and social workers, before tabling its proposals to the Legislative Council’s Panel on Administration of Justice and Legal Services. The resulting Ordinance was passed by LegCo last May and will come into force in just over two months’ time.

Key points

In short, the new legislation provides for faster and more cost-effective family law proceedings either side of the border. It can be divided into three main parts:

1. Recognition and enforcement of Mainland judgments

A party to a Mainland judgment can apply to register it with the District Court provided it is given on or after the commencement date of the Ordinance. The judgment must relate to a specified order, such as custody or guardianship of a child, granting divorce or annulment of a marriage, child or spousal maintenance, or division of property. If the court is satisfied requirements have been met, it may confirm the registration. However, the other party may apply for it to be set aside while the matter is further considered.

2. Recognition of Mainland divorce certificates

A party to a Mainland divorce certificate can apply to the District Court to have it recognised in Hong Kong provided it is issued on or after the commencement date of the Ordinance. The procedures are largely similar to those applicable under part 1.

3. Assisting enforcement in the Mainland of Hong Kong judgments

When a judgment is given by a Hong Kong court on or after the commencement of the Ordinance, a party can apply for a certified copy of the judgment together with a certificate stating it is effective in Hong Kong. They can submit these documents to the relevant Mainland court to seek recognition and enforcement. Such judgments cover 14 types of orders, including decree absolute of divorce or nullity, maintenance, custody, access, guardianship, adoption and transfer or sale of property.

Comments

Given the number of cross-border matrimonial and family cases before the Hong Kong courts, the benefits of this new legislation are clear. It provides a more expeditious and cost-effective mechanism for thousands of families to settle their disputes. By reducing the need for divorce and related proceedings to be brought in both jurisdictions, it alleviates the emotional impact on parents and their children.

Women, in particular, are better protected by the new procedures, given that they are usually the recipients of maintenance payments or the victims in domestic violence cases. As well, there are improved safeguards for children. For example, if a child is wrongfully removed or detained by a parent on one side of the border, the other parent can seek assistance from the courts for their return.

It is worth noting that the new law will be accompanied by a government publicity programme while a “one-stop shop” dedicated webpage will be set up on the Department of Justice’s website. Similar steps will be taken by the judicial authorities in the Mainland.

Cross-border matrimonial disputes are often costly, time-consuming and stressful. The new legislation mitigates these issues and makes for a more streamlined process. It is therefore a welcome addition to Hong Kong’s family law landscape.

A Senior Associate with BC&C, Allison Lee is experienced in matrimonial and family matters, having worked with local and expatriate clients on applications for divorce, separation, financial disputes, asset division, maintenance and child’s custody and care arrangements. She also has experience in general civil litigation. She can be contacted at allison@boasecohencollins.com.

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