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Mainland and Hong Kong mutual recognition and enforcement of family court judgments

In accordance with Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and through mutual consultation between the Supreme People’s Court and the Government of Hong Kong Special Administrative Region (HKSAR), the following arrangement is hereby made for the recognition and enforcement of civil judgments in matrimonial and family cases:

Article 1 Where a party applies with a court of the HKSAR for the recognition and enforcement of an effective civil judgment in a matrimonial and family case made by a people’s court of the Mainland, or where a party applies with a people’s court of the Mainland for the recognition and enforcement of an effective civil judgment in a matrimonial and family case made by a court of the HKSAR, this Arrangement shall apply.

Where a party applies with a court of the HKSAR for the recognition of a divorce certificate issued by a civil affairs authority of the Mainland, or a party applies with a people’s court of the Mainland for the recognition of a divorce agreement or memorandum of dissolution of a marriage under Parts V and VA of the Marriage Reform Ordinance (Cap. 178), this Arrangement shall apply mutatis mutandis.

Article 2 “An effective judgment” under this Arrangement means:

  1. In the case of the Mainland, any judgment of the second instance; any judgment of the first instance for which no appeal is allowed or any judgment of the first instance in respect of which the time limit provided for an appeal under Mainland law has expired and no such appeal has been filed; and any judgment made under the procedure for trial supervision.
  2. In the case of the HKSAR, any legally effective judgment made by the Court of Final Appeal, the Court of Appeal and the Court of the First Instance of the High Court and the District Court, including all the orders that may be varied pursuant to Hong Kong laws after the judgment takes effect.

“Judgment” mentioned in the preceding paragraph, in the case of the Mainland, includes any judgment, ruling and conciliation statement and, in case of the HKSAR, includes any judgment, order, allocatur and certificate of fixed costs for proceedings, but excludes the judgments made by any court of other countries or regions recognized by either party pursuant to their respective laws.

Article 3 For the purpose of this Arrangement, “matrimonial and family cases” refers to:

  1. In the case of the Mainland,

(1) Division of the property of parties to a marriage during the subsistence of the marriage;

(2) Dissolution of a marriage;

(3) Property disputes after divorce;

(4) Validity of a marriage;

(5) Annulment of a marriage;

(6) Disputes over a property arrangement made by the parties to a marriage;

(7) Disputes over custody of a child between cohabitees;

(8) Determination of parentage;

(9) Disputes over custody of a child;

(10) Disputes over the duty to maintain the other party to a marriage;

(11) Order for adoption of a child;

(12) Disputes relating to guardianship of parents over a minor child;

(13) Disputes over the rights of access to a child; and

(14) Protective orders in situations of domestic violence.

  1. In the case of the HKSAR,

(1) Decrees absolute of divorce made under Part III of the Matrimonial Causes Ordinance (Cap. 179);

(2) Decrees absolute of nullity made under Part IV of the Matrimonial Causes Ordinance (Cap. 179);

(3)Orders for maintenance pending suit made under the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(4) Maintenance orders made under the Guardianship of Minors Ordinance (Cap. 13), the Separation and Maintenance Orders Ordinance (Cap. 16), and Parts II and IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(5) Orders for transfer of property and sale of property in matrimonial proceedings made under the Guardianship of Minors Ordinance (Cap. 13), and Parts II and IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(6) Orders as to property made under the Married Persons Status Ordinance (Cap. 182);

(7) Orders made during the lives of parties for alteration of maintenance agreements made under the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(8) Adoption orders made under the Adoption Ordinance (Cap. 290);

(9) Declarations of parentage, legitimacy or legitimation made under the Marriage Causes Ordinance (Cap. 179) and the Parent and Child Ordinance (Cap. 429);

(10) Custody orders made under the Guardianship of Minors Ordinance (Cap. 13), the Separation and Maintenance Orders Ordinance (Cap. 16), and the Matrimonial Proceedings and Property Ordinance (Cap. 192);

(11) Custody orders made with respect to a minor child who has been made a ward of a HK court; and

(12) Non-molestation orders, ouster orders, re-entry orders and variation or suspension of custody orders and access orders made under the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189).

Article 4 An application for the recognition and enforcement of the judgments set forth in this Arrangement shall be made:

  1. in the case of the Mainland, with the intermediate people’s court at the place of domicile or habitual residence of the applicant, or the domicile or habitual residence of the respondent or the place where the property of the respondent is situated; and
  2. in the case of the HKSAR, with the District Court.

The applicant shall apply to any one of the people’s courts set forth in the preceding paragraph. If two or more people’s courts with the jurisdiction are applied, the people’s court that first accepts the case shall govern the case.

Article 5 An applicant applying for recognition and enforcement of a judgment set forth in Paragraph 1, Article 1 of this Arrangement shall submit the following documents:

  1. An application;
  2. A copy of the effective judgment sealed by the court which made the said judgment;
  3. A certificate issued by the court which made the effective judgment, certifying that the judgment is an effective judgment in a matrimonial and family case as referred to in this Arrangement;
  4. If the judgment is a judgment by default, evidence that the court has summoned the parties concerned according to the law,, unless such a clear statement is made on the judgment or the absent party files the application; and
  5. A notarized copy of the identity certificate.

An applicant applying for a divorce certificate or a divorce agreement or memorandum of dissolution of a marriage set forth in Paragraph 2, Article 1 of this Arrangement shall submit the following documents:

  1. An application;
  2. A notarized copy of the divorce certificate, or a notarized copy of the agreement or memorandum; and
  3. A notarized copy of the identity certificate.

Where any document submitted to a people’s court of the Mainland is not in the Chinese language, the applicant shall submit an accurate Chinese translation.

Article 6 An application shall specify the following:

  1. Basic information of the person concerned, including his name, domicile, identity certificate information and correspondence;
  2. The grounds for and particulars of the application; the place where the property of the respondent is situated and the status of the property if an enforcement application is filed; and
  3. Whether any application has been made for enforcement of the judgment at any other court and the status of its enforcement.

Article 7 The term, procedures and approach for an applicant to apply for recognition and enforcement of a judgment shall be governed by the law of the place of the requested party.

Article 8 A court shall examine as soon as possible an application for recognition and enforcement, and make a ruling or give an order.

Article 9 With respect to a judgment under an application for recognition and enforcement, if the respondent adduces evidence to prove any of the following situations, the court shall, upon having examined such evidence and found any of the said situations proved, refuse to recognize and enforce the judgment:

  1. The respondent had not been summoned according to the law of the original court, or had not been given a reasonable opportunity to make statements or arguments, even if he/she was summoned according to the law of the original court;
  2. The judgment was obtained by fraud;
  3. The judgment was rendered in a cause of action which was accepted by the original court after the requested court has already accepted the case of action on the same dispute; or
  4. The requested court has rendered a judgment on the same dispute, or a foreign court has already rendered judgment on the same dispute and that judgment has been recognized or enforced by the requested court;

If the Mainland court considers that the recognition and enforcement of the judgment is manifestly contrary to the basic legal principles of Mainland law or the social and public interests of the Mainland, or the Hong Kong court considers that the recognition and enforcement of the judgment is manifestly contrary to the basic legal principles of Hong Kong law or the public policy of Hong Kong, the judgment shall not be recognized and enforced.

If the judgment involves a minor, the court shall take into account the best interests of the minor in deciding whether or not to recognize and enforce the judgment under provisions of the preceding paragraph.

Article 10 If the requested court cannot grant recognition and enforcement for all the items of a judgment, it may recognize and enforce a part of the items.

Article 11 Where, in the case of a judgment made by a court of the HKSAR, a party to the judgment has lodged an appeal, a people’s court of the Mainland may, upon having examined the above situation and found it proved, suspend the recognition and enforcement procedures. After the appeal, the recognition and enforcement procedures shall be resumed if the original judgment is upheld in part or in whole, or terminated if the original judgment is reversed.

Where, in the case of a judgment made by a people’s court of the Mainland, a ruling has been made by a people’s court of the Mainland to bring up the case for retrial, the court of the HKSAR may, upon having examined the above situation and found it proved, suspend the recognition and enforcement procedures. After the retrial, the recognition and enforcement procedures shall be resumed if the original judgment is upheld in part or in whole, or terminated if the original judgment is reversed.

Article 12 Under this Arrangement, a judgment made by a people’s court of the Mainland ordering that a property be vested in one party to the marriage will be deemed to mean, for the purpose of enforcement in HKSAR, an order for the transfer of the property to that party.

Article 13 If the respondent has enforceable property in both Hong Kong and the Mainland, the applicant may apply with courts in both Hong Kong and the Mainland respectively for enforcement.

The total amount of property enforced by courts in Hong Kong and the Mainland shall not exceed the sum specified in the relevant judgment. A court in Hong Kong or the Mainland shall, at the request of a court at the other side, provide the information of its enforcement of the judgment.

Article 14 The scope of the property to be paid under the reciprocal recognition and enforcement of a judgment by the courts of the Mainland and of the HKSAR shall include the property specified in the judgment and corresponding interest, late fee and litigation costs. However, taxes and fines are not included.

In the case of the HKSAR, “litigation costs” mentioned in the preceding paragraph refers to the costs verified or ordered to pay in an allocatur or certificate of fixed costs.

Article 15 After the requested court gives a ruling or order for the application for recognition and enforcement of a judgment, if any party concerned is aggrieved by the decision, he may apply, in the case of the Mainland, to a people’s court at the next higher level for review within ten days of the date when the ruling is served. In the case of the HKSAR, he may appeal against the decision in accordance with local law.

Article 16 The court shall accept an application for the recognition and enforcement of a judgment made by a court of another place on the same dispute during the period in which a matrimonial and family case is being tried by the court. The relevant litigation procedures shall be suspended upon acceptance, and may be terminated or resumed in light of the actual situation after a ruling or order is given for the application for recognition and enforcement.

Article 17 When examining an application for recognition and enforcement of a judgment, the court shall not accept the case brought by any party concerned for the same dispute, and shall dismiss the claim if it has been accepted.

After a judgment is recognized and enforced, the action filed by any party concerned on the same dispute shall not be accepted.

If the judgment is not recognized and enforced, the applicant shall not make another application for recognition and enforcement of the judgment but is allowed to bring an action on the same dispute in the requested court.

Article 18 The requested court may, before and after accepting any application for recognition and enforcement of a judgment, impose preservation or mandatory measures in accordance with its law.

Article 19 Any party who applies for the recognition and enforcement of a judgment shall make payment of the legal costs prescribed by the laws and regulations of the place of the requested party.

Article 20 This Arrangement shall apply to any judgment made on and after the day of the commencement of this Arrangement by the courts of the Mainland and of the HKSAR.

Article 21 In the event of any problem arising in the course of implementing this Arrangement or a need for amendment of this Arrangement, it shall be resolved through consultations between the Supreme People’s Court and the Government of the HKSAR.

Article 22 After a judicial interpretation has been promulgated by the Supreme People’s Court and the relevant internal procedures have been completed in the HKSAR, both sides shall announce a date on which this Arrangement shall come into effect and be put into implementation.

This Arrangement is signed in duplicate at Hong Kong on 20 June 2017.

 

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