(1) Registration of specified orders made in China in Hong Kong courts
The Ordinance provides detailed guidance for the registration of specified orders made in the Mainland to be registered in the Hong Kong courts. They cover three main types of order:
- Care-related orders such as orders in relation to children’s custody, guardianship and right of access;
- Status-related orders such as orders granting divorce or parentage; and
- Maintenance-related orders such as orders in relation to spousal or children maintenance and division of property.
There are detailed provisions in the Ordinance in respect of how and when an application for registration can be made. The specified orders must be given on or after 15 February 2022 and are effective in the Mainland. A registration application shall be made to the Hong Kong Family Court supported by an affidavit with details about the Mainland orders/judgment. For registration concerning care-related or maintenance-related orders, any application shall be made within a time limit of two years. The applicant must serve a notice of registration on all other parties to the Mainland judgment.
Setting aside an application
Registration of a Mainland order can be set aside on certain grounds including where a party has not had sufficient time or opportunity to make submissions, if there has been fraud, or proceedings have already started in a Hong Kong court or a judgment has already been given by a Hong Kong court or elsewhere in respect of the same cause of action between the same parties or if the judgement has been subject to appeal. The registration will also be set aside if the recognition or enforcement of the specified order is manifestly contrary to the public policy of Hong Kong.
Effect of registration
Once the care or maintenance related orders have been registered, they will be enforceable in Hong Kong as if they had been originally made in Hong Kong. A status-related order will be recognized as valid on registration, so long as the time limit to apply to set aside has expired.
It is important to note that the Ordinance seeks to restrict and minimize parallel proceedings in Hong Kong for the same cause of action between the same parties by providing for proceedings pending before a Hong Kong Court to be stayed, and by prohibiting the commencement of new proceedings in Hong Kong, pending final disposal of a registration application (or an application to set aside the registration, as the case may be).
However, one exemption to this “anti-parallel proceedings” rule will be proceedings under Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192) which is concerned with seeking financial relief in Hong Kong in a foreign divorce.