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New Legal Regime for Cross-Boundary Matrimonial and Family Cases and Guidance Note on Case Management in Children and Ancillary Relief Proceedings 

by Deacons

Published: September, 2021

Submission: September, 2021

 



The green light was recently given for two substantive changes in family law practice. First, on 15 February 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (Ordinance) and Rules will come into operation. Secondly, there is a new Guidance Noteon Case Management and Time Tabling in Children and Ancillary Relief Proceedings issued by the Judiciary under Practice Direction SL10.4.


Implementation of the Ordinance and Rules in recognising and enforcing judgments in cross-boundary matrimonial and family cases


In our previous articles we outlined the main aspects of the Ordinance, and explained its framework and effect.


The Ordinance provides for three main areas of reciprocal recognition and/or enforcement as follows:


(a) A party to an effective Mainland judgment given in a matrimonial or family case can apply to the District Court in Hong Kong to register any of the following specified orders:


  • care-related orders;


  • status-related orders; and/or


  • maintenance-related orders. 


(b) party to a divorce specified in a Mainland divorce certificate can apply to the District Court in Hong Kong to recognise the divorce certificate and such recognition will be given, if the Court is satisfied that the divorce certificate is valid in the Mainland. 


(c) For the purpose of facilitating the recognition and enforcement of Hong Kong judgments in matrimonial or family cases, as specified in Schedule 3 of the Ordinance (such as a divorce decree absolute, maintenance order, an order for transfer or sale of property, an order for the custody or wardship of a child etc) in the Mainland, a party to an effective Hong Kong judgment given in a matrimonial or family case can apply to the relevant Court in Hong Kong for a certified copy of the Hong Kong judgment and a certificate certifying that the judgment is effective in Hong Kong.


In our next article, we will explore how we expect the new mechanism will work, in particular, for cases involving third party interests and orders to avoid transactions intended to defeat certain claims for financial provision under section 17 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO). The Ordinance is particularly relevant as cross-boundary marriages and asset accumulation increase, and Schedule 3 of the Ordinance specifically provides that maintenance and transfer or sale of property orders under Part II and Part IIA of the MPPO are covered under the Ordinance.


Guidance Note on Case Management and Time Tabling in Children and Ancillary Relief Proceedings (PD SL10.4)


The new Practice Direction SL10.4, dated 13 August 2021, introduces the Family Court’s new time tabling scheme, which applies to all new cases involving children proceedings and ancillary relief proceedings filed on or after 1 September 2021*. To enhance effective case management and timetabling, some judges will be allocated with the task of conducting Children Dispute Resolution, Financial Dispute Resolution and all trials (Allocated Judge or AJ), and some judges will deal with the initial case management aspects of the proceedings and the processing of interlocutory applications (Case Management Judge or CMJ). Further, target time tables have been introduced to ensure Children Proceedings and Ancillary Relief Proceedings are dealt with expeditiously.


First Appointments and Children Appointments will be listed before the CMJ and processed on paper with the CMJ’s directions, without any oral hearing. A case will be transferred to the AJ when it is ready for a Case Management Hearing (CMH). At the CMH, the AJ will appraise the complexity of the Children Proceedings and/or Ancillary Relief Proceedings and duration of the trial, to set the target time table.


With the Ordinance coming into operation in February 2022, we believe that the collaboration between Hong Kong and Mainland Courts will be enhanced and parties involved in cross-border marriages will have more certainty in enforcing judgments across the two jurisdictions.


The new Practice Direction SL10.4 is welcomed by our Family Team, as we believe that it should help resolve matrimonial and family disputes more quickly and effectively and thereby minimise emotional distress and preserve family harmony.




* It can also apply to existing cases filed before 1 September 2021 with the parties’ consent, if appropriate.


 



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