lived in the PRC since. Due to the breakdown of their relationship, Ms. Ren and Mr. Ching have been living separately and apart for a
few years. About a year ago, Mr. Ching relocated to Hong Kong, whilst Ms. Ren continued to live in the PRC.
Ms. Ren now wishes to know where she should issue divorce proceedings.
According to Ms. Ren, most assets acquired by her and Mr. Ching after the marriage were located in the PRC, and their children are
still living in the PRC.
Do the Hong Kong Courts have jurisdiction to hear the divorce application? Or is the matter under the jurisdiction of the PRC
Courts? Since most of the assets are located in the PRC, can a PRC judgment in matrimonial and family cases be recognized and
enforced in Hong Kong?
Even though the parties were married in Hong Kong, as they mainly resided in the PRC after marriage, and their arrangements
regarding the children and assets were more closely connected to the PRC than Hong Kong, it would appear that the Hong Kong
Courts do not have jurisdiction to hear the divorce proceedings.
Jurisdiction Issue
Under section 3 of the Matrimonial Causes Ordinance (Cap.179), Hong Kong Courts shall have jurisdiction in proceedings for divorce
only if either of the parties to the marriage:-
was domiciled in Hong Kong at the date of the divorce petition or application;
was ordinarily resident in Hong Kong throughout the 3 years immediately prior to the date of the petition or application; or
had a substantial connection with Hong Kong at the date of the petition or application.
Thus, in the above scenario, neither one condition is satisfied and the Hong Kong Courts do not have jurisdiction. On the contrary,
the PRC Courts would be a more suitable forum. However, as Mr. Ching now resides in Hong Kong, is a valid PRC divorce judgment
recognized in Hong Kong? Can the parties’ matrimonial assets located in Hong Kong be enforced against?
Historical Enforcement of PRC Judgments in Matrimonial and Family Cases in Hong Kong
To facilitate the reciprocal recognition and enforcement of civil judgments in matrimonial and family cases, the Supreme People’s
Court and Hong Kong Government signed the Arrangement on Reciprocal Recognition & Enforcement of Civil Judgments in
Matrimonial & Family Cases by the Courts of the Mainland & the Hong Kong Special Administrative Region (“Arrangement”) on 20th
June 2017.
Yet, prior to the passing of relevant local legislation, in general, judgments given by PRC courts in matrimonial and family cases and
divorce certificates issued by PRC authorities were not recognized and enforced in Hong Kong. Neither were orders of the Hong
Kong Court directly enforceable in the Mainland.
Therefore, parties in a cross-border divorce case were often faced with immense difficulty in terms of enforcement, and often had to
make separate arrangements in the PRC and Hong Kong.
Enforcement of PRC Judgments in Matrimonial and Family Cases in Hong Kong after the passing of the Ordinance
On 5th May 2021, the Legislative Council in Hong Kong passed the Mainland Judgments in Matrimonial and Family Cases (Reciprocal
Recognition and Enforcement) Bill (“Bill”). On 14th May 2021, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal
Recognition and Enforcement) Ordinance (“Ordinance”) was published in the Gazette, marking a new era for mutual recognition
and enforcement of cross-border court orders in matrimonial and family cases.
Following the passing of the Bill and the Ordinance:-
A valid certificate of divorce in the Mainland may be registered at the District Court and recognized in Hong Kong;
Three types of “Specified Orders” made by appropriate Mainland courts in family and matrimonial matters may be registered in Hong Kong. They are:-
Care-related Orders (concerning children’s custody, guardianship and parental access);
Status-related Orders (relating to divorce and annulment of marriage); and
Maintenance-related Orders (relating to children’s maintenance, spousal maintenance and division of property).
Once registered (and after the expiry of the period within which an application for setting aside registration may be made), Statusrelated
Orders are recognized as valid in Hong Kong, and Care-related Orders and Maintenance-related Orders may be enforced in
Hong Kong as if they were an order originally made by the registering court in Hong Kong with jurisdiction to do so on the date of
registration.
Therefore, in the above scenario, the most appropriate course for Ms. Ren to take is to commence proceedings in the PRC for divorce
and orders concerning the arrangement for the children, and division of assets. Thereafter, she may register the PRC divorce
certificate/judgment and relevant Orders at the Hong Kong Courts for enforcement in Hong Kong.
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