New Study On Recognition And Enforcement Of Interregional Divorce Judgment Between Mainland China And Hong Kong

Along with the increasingly frequent people-to-people contacts and economicexchanges between the Mainland China and Hong Kong, the cross jurisdictionmarriage is increasing, and the number of cross jurisdiction divorce also increasedyear by year. Dissolution of marriage is always accompanied by the division ofproperty, child custody and dependency and other incidental issues. These issues arevery essential, have far-reaching impact to citizens, directly impact the interests of theparties and their families, and even lead to social problems. Therefore, research on theinterregional divorce legal issues between the Mainland China and Hong Kong hasimportant realistic meaning.In2010, when hearing the divorce case of Ma Lin v. Yang Jun(hereinafterreferred to as ML v YJ), Hong Kong Court of Final Appeal recognized the divorcejudgment by Shenzhen Intermediate People’s Court, but did not support one of theparty’s application of financial relief. This is a landmark case which directly lead tothe social discussion on the amendment of the Matrimonial Proceedings and PropertyOrdinance, and finally the Legislative Council passed through MatrimonialProceedings and Property (Amendment)Ordinance2010on December15,2010. MLv YJ will become the important precedents cited by Hong Kong courts. According to the present law of Hong Kong, one can’t apply for financial relief to Hong Kong courtafter he/she has obtained a decree of divorce in a foreign court. While the revisedordinance provides that even if having obtained the divorce decree in a foreign court,either party can apply for financial relief to the court of Hong Kong. The newordinance applies to divorce cases between Mainland China and Hong Kong. TheHong Kong matrimonial proceedings will enter into a new era. The recognition andenforcement of Mainland divorce judgment in Hong Kong will has a clear legal basisfrom that time on. Afterwards the Hong Kong will recognize and enforce Mainlanddivorce judgment based on the local laws of Hong Kong, so it’s a problem to besolved that how Mainland will reply.Based on an overview to the marriage legal conflict situation between theMainland and Hong Kong, the thesis starts from the above case and the ordinanceamending, summarizes the disputes in trial, lists the revised content and analyzes theinstructive meaning thereof on interregional judicial assistance. Then studies thesituation of interregional judicial assistance in developed countries such as Britain,the United States and Germany, and give feasible suggestions for recognition andenforcement of divorce judgment between Mainland and Hong Kong.The paper contains four chapters, thirty-two thousand words in all, andstructured as follows:ChapterⅠexplains basic problems. Analyzes the special features of legal conflictin foreign marriage; learns about the cross jurisdiction marriage and the recognitionand enforcement situation of divorce judgment thereof, including disputes on divorcewhen negotiating the Arrangements on Agreement Jurisdiction between the MainlandChina and Hong Kong; Further analyzes the problems and difficulties on divorcebetween Mainland and Hong Kong, including the differences of law and how the twotreat differently on a same question.ChapterⅡ does a indepth study on ML v. YJ. Described the focus of controversyin the three-trial procedures, including the paralell jurisdiction, common intent, publicpolicy, whether it’s a foreign judgment, recognition, and ancillary relief application. Chapter Ⅲ analyzes the main content and impact of the MatrimonialProceedings and Property (Amendment) Ordinance2010. The most significantchanges in the ordinance is of the financial ancillary relief, which is most worthy ofour study and is the most pressing problem for Mainland court to cope with.Chapter Ⅳ is for suggestions. SectionⅠanalyses the enlightenment torecognition and implementation of interregional divorce judgement between Mainlandand Hong Kong, based on the studying that of the model in developing countries.Section Ⅱ learns of the legal basis in chinese court when recognizing andimplementing a foreign divorce judgement. Section Ⅲ gives preliminary proposal inthe view of financial ancillary relief as well as others. It is recommended thatMainland should recognize property content in Hong Kong court’s divorce judgementand Mainland Supreme Court should issue a special notice correspondingly, thatMainland should be strengthened to protect women’s interests, that Mainland shouldbe based on the principle of reciprocity, public policy reservation and case law as theguiding principles to solve this problem, as well as the utilization of internationalconventions, entering into independent arrangement or legislation, complying with theprinciple of gradual and orderly progress, going formal examination, ect.