Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Oscar Wong
Introduction
On June 20 2017, the Hong Kong SAR Government signed an arrangement with the Supreme People’s Court of the People’s Republic of China for the reciprocal recognition and enforcement of judgments in matrimonial and family cases (“Arrangement”).[1] Under the Arrangement, an order on divorce, maintenance, custody and related matters made by a Hong Kong court shall be recognised and enforceable in the Mainland, and vice versa. Although the Arrangement is yet to be implemented,[2] there is much to celebrate. In view of the growing number of cross-boundary marriages between Hong Kong and Mainland residents,[3] the Arrangement provides a timely remedy for the uncertainty and difficulties that divorcing couples face when seeking to enforce orders made the opposite of the border in matrimonial and family cases. This article commends the Arrangement and agrees with the Department of Justice of Hong Kong that the Arrangement provides better safeguards for Hong Kong families and their children,[4] while also highlighting some concerns regarding the Hong Kong SAR Government’s proposal to implement the Arrangement.
The Arrangement
The Arrangement is welcomed for settling the law on the recognition of divorce decrees pronounced by Hong Kong courts in the Mainland. The enforcement of Hong Kong divorce decrees in the Mainland is an issue of particular significance to those, for instance, who seek to remarry in the Mainland or sue a party who has since moved to the Mainland for unpaid costs from divorce. Troublingly, despite the Zhuhai Intermediate People’s Court’s decision in 2011 to recognise a divorce decree obtained in Hong Kong,[5] there is no guarantee that other courts in the Mainland will follow suit. Legal uncertainty in this regard is attributable to the Mainland’s legal system: unlike common law jurisdictions, judicial precedents are not formally recognised as a source of law in the Mainland.[6] Even if the 2011 decision is selected by the Supreme People’s Court as a “guiding case”, Mainland courts are required merely to consider the decision in its reasoning pursuant to the recent Guiding Opinion. [7] Courts in the Mainland are simply not bound to follow the 2011 decision even when confronted with analogous facts. As things stand, parties seeking to enforce their divorce decrees made by a Hong Kong court are left to take their chances with Mainland judges. On this note, the Arrangement lifts the fog in this crepuscular area of law as it promises concerned parties that a Hong Kong divorce decree shall be enforceable in all courts across the Mainland. The Arrangement will likely spare parties the trouble and cost of seeking some legal stratagem to maximise their prospects of enforcing a divorce decree obtained in Hong Kong.
The Arrangement also remedies a dire problem relating to the unenforceability of a maintenance order made by a Hong Kong court in the Mainland. Since maintenance orders made in foreign jurisdictions are not recognised under the Mainland’s legal regime,[8] a glaring loophole exists whereby a recalcitrant maintenance payer who has relocated to the Mainland cannot be compelled to comply with the order made by a Hong Kong court. This is grossly unjust to the maintenance payee in Hong Kong who, already in a weaker pecuniary position, loses a source of financial support through no fault of her own. In “small money” cases where neither party is particularly pecunious, the loss of maintenance payments may even subject the payee to serious financial hardship. The situation is hardly better for a party seeking to enforce a maintenance order made by a court in the Mainland because instigating legal proceedings in a Hong Kong court will inevitably incur extra costs, time and emotional distress.[9] To this end, the Arrangement ameliorates the unsatisfactory state of the law which unacceptably leaves parties vulnerable to the wrongful acts of others. By enabling the enforcement of Hong Kong maintenance orders in the Mainland, and vice versa, the Arrangement provides redress to parties unlawfully deprived of their maintenance payments. It plugs the legal lacuna where maintenance payers may evade their obligations with impunity and payees consequently suffer.
Furthermore, the Arrangement protects the interests of both parents and children in parental abduction cases by enabling reciprocal recognition of custody orders on both sides of the border. In cases where one parent takes their child across the border before filing an application for divorce, the other parent’s hands are tied even if they do not consent to the child’s removal. The reason is that neither Hong Kong nor the Mainland currently recognises custody orders made by courts on the other side of the border.[10] In this connection, if a child is removed from Hong Kong to the Mainland unless the parent who has abducted the child returns the child voluntarily, the only lawful means to recover the child is to initiate proceedings in the Mainland. Unfortunately, notwithstanding the extra costs such proceedings will incur, there is no promise of success. In the recent case of L v L,[11]the Lo Wu People’s Court in Shenzhen declined jurisdiction over the application of a father from Hong Kong whose five-year-old son was removed unilaterally by his Chinese mother. Despite obtaining a full custody order from the Hong Kong Court of Appeal, there was nothing the father could do to reunite with his son. The Arrangement will thus resolve the plight of parents in a similar position to the father in L by upholding their custody rights over their children. Importantly, the Arrangement ensures the prompt return of children who have been wrongfully removed to their habitual place of residence, which is internationally accepted as consistent with the best interests of children.[12] In short, the Arrangement safeguards the interests of all parties in cases where children are wrongfully removed or retained.
Some concerns
This article, as shown above, supports in principle the reciprocal recognition of judgments in matrimonial and family cases between Hong Kong and the Mainland. However, this article also notes a number of issues relating to the Hong Kong SAR Government’s proposal to implement the Arrangement, the draft Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill (“Draft Bill”). [13]
The first issue concerns the scope of the Draft Bill. The Draft Bill deals only with the recognition and enforcement of Mainland orders and makes no provision regarding how an order made in Hong Kong will be recognised in the Mainland. In particular, it is unclear whether and if so to what extent the reciprocal arrangements will mirror the provisions in Hong Kong. This is not ideal in terms of legal certainty and transparency, and clarification should be provided to the public promptly.
Secondly, the two-year deadline stipulated by Clause 9 of the Draft Bill concerning the registration in a Hong Kong court for the enforcement of maintenance and care-related orders made in the Mainland is unjustifiable. An obvious unfairness arises in that the two-year deadline renders a party’s chances of enforcing a judgment contingent upon events out of his or her control. For instance, a party will be barred in Hong Kong from enforcing a breached maintenance order made by a Mainland Court if the defaulting party has gone into hiding and decides only to re-emerge in Hong Kong after two years. Similarly, a care-related order made by a court in the Mainland becomes unenforceable in Hong Kong if the child concerned relocates to Hong Kong only after two years of ongoing non-compliance with the order (e.g. denial of access). As the Bar Association of Hong Kong noted, the deadline could wreak injustice.[14] Perhaps there is a case for abolishing the deadline, which appears arbitrary for want of a cogent explanation on its rationale. While the Bar Association suggested that the deadline was set to screen out legally ineffective Mainland judgments,[15] since a valid application for the execution of a judgment must also be submitted within two years of its making under Chinese law,[16] justifying the deadline solely on this basis is unsatisfactory. The deadline’s objective will be defeated and the two-year limit reduced to a source of blatant unfairness if the law in the Mainland changes. This article thus suggests a careful reconsideration of the deadline—in fact any cast-iron time-bar should be avoided until and unless sound justification is given. Hong Kong courts should have the power to extend or exempt the deadline where it is fair and just, and insofar as the ascertainment of effective Mainland judgments is concerned, instruction may be provided via practice guidelines that can easily be revised should the law in the Mainland change.
Thirdly, the mandatory order for stay of proceedings prescribed by Clause 27(3) of the Draft Bill is draconian. Pursuant to Clause 27(3), the adjudicating court in a matrimonial or family case must order a stay of proceedings if it is notified of an application for recognising a judgment made by a court of the other place in respect of the same dispute. This is harsh to a party seeking interim relief in Hong Kong,[17] whose pending claims will invariably be shut out even if leave is obtained. Furthermore, the court has no discretion over the period of the stay. Clause 27(4) provides that a resumption or termination of the proceedings may only be ordered on an application of a party to the proceedings. This effectively ties the court’s hands even where it is of the view that the stay is wrongly imposed (i.e. the application for recognising a Mainland judgment is unmeritorious) or that the stay is unjustifiably damaging to a party’s interests. There is an imperative to amend Clauses 27(3) and (4) to grant courts discretion over the period of a stay of proceedings or whether to impose a stay at all.
Conclusion
The issues relating to the Draft Bill must be considered and addressed. However, the Draft Bill’s flaws should not be taken to undermine the merits of a legal framework for the reciprocal recognition and enforcement of judgments in matrimonial and family cases between Hong Kong and the Mainland. The Arrangement should be praised for remedying the various legal difficulties couples face upon divorce under the existing uncertain and potentially unfair laws, and for offering greater protection to all parties involved. Moreover, the foreseeable increase in cross-boundary marriages due to enhanced mobility and integration of Hong Kong and Chinese residents presents a strong case for implementing the Arrangement.[18] This article urges the Hong Kong SAR Government to implement the Arrangement promptly upon a thorough review of the issues concerning the Draft Bill as highlighted above.
[1] Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region (2017)
[2] Second public consultation for the bill ended in February 2019
[3] The proportion of Hong Kong-Mainland cross-boundary marriages amongst all marriages registered in Hong Kong increased from 20% to 34.6% from 2010 to 2016. Source: Statistics and Census Department of the Government of the Hong Kong Special Administrative Region, “Marriage and Divorce Trends in Hong Kong, 1991 to 2016” (January 2018) <https://www.censtatd.gov.hk/hkstat/sub/sp160.jsp?productCode=FA100055> accessed 20 September 2020
[4] Department of Justice of the Government of the Hong Kong Special Administrative region, “Public views sought on proposed Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill and Rules” (February 2019) <https://www.doj.gov.hk/eng/public/pr/20190208_pr1.html> accessed 19 September 2020
[5] 凌某申請認可香港法院判決案 (2011) 珠中法民確字第 4 號
[6] Luo, Wei, Chinese Law and Legal Research (Hein 2005), 105
[7] Article 10 of the Guiding Opinion Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Provisional) (最高人民法院关于统一法律适用加强类案检索的指导意见（试行) (2020)
[8]Article 2 of the Provisions of the Supreme People’s Court on Issues Concerning Acceptance by People’s Courts of Applications for Recognizing Divorce Judgments of Foreign Courts (promulgated on 31 August 1991) states that the Provisions are inapplicable to the recognition and execution of judgments on the division of property of husband and wife, burden of living expenses, and child support in divorce judgments of foreign courts. Similarly, the two Ordinances in Hong Kong (Cap. 188 and Cap. 139) regulating the recognition of matrimonial orders made in foreign jurisdictions are inapplicable to judgments made by a court in the Mainland.
[9] Department of Justice of the Government of the Hong Kong Special Administrative Region, Consultation Paper on the Proposed Arrangement with the Mainland on Reciprocal Recognition and Enforcement of Judgments on Matrimonial and Related Matters (June 2016), para. 7
[10] There is no system in China for the registration or enforcement of foreign custody orders. While Hong Kong signed the Hague Convention and incorporated its provisions into the Child Abduction and Custody Ordinance (Cap. 512) in 1997, the PRC is not a signatory.
[11] CACV 204/2016
[12] The prompt return of children who are wrongfully removed to the jurisdiction of their habitual residence is stipulated by Articles 1 and 7 of the Hague Convention on the Civil Aspects of International Child Abduction (1980), the objective of which is to promote the best interests of children.
[13] The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill (2019)
[14] Hong Kong Bar Association Committee on Family Law, Observations on the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Bill and Rules (March 2019), para. 25
[15] ibid, para. 22
[16] Article 215, Civil Procedure Law of the People’s Republic of China
[17] Under the Matrimonial Proceedings and Property Ordinance (Cap. 192)
[18] Chung, “The Greater Bay Area: Integration, Differentiation and Regenerative Ecologies” ( 21 June 2020) <https://www.archdaily.com/942022/the-greater-bay-area-integration-differentiation-and-regenerative-ecologies> accessed 20 September 2020
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