Taiwan Legalises Same-Sex Marriage: What Is Hong Kong Doing to Protect LGBT Rights?

Taiwan Legalises Same-Sex Marriage: What Is Hong Kong Doing to Protect LGBT Rights?

Taiwan Legalises Same-Sex Marriage: What Is Hong Kong Doing to Protect LGBT Rights? 1050 700 Alfred Ip

Taiwan became the first place in Asia to legalise same-sex marriage last Friday. As thousands of people gathered outside the local Parliament Building cheering and waving rainbow flags,  profound divisions over marriage equality continued to be debated.

The long battle in Taiwan has finally reached a positive outcome

Lawmakers of the majority Democratic Progressive Party backed the bill, which passed 66 to 27, although the measure could complicate President Tsai Ing-wen’s bid to win a second term in presidential elections next year, given the growing opposition of her agenda which includes protecting LGBT rights. In fact, late last year Taiwan voters opposed same-sex marriage in a referendum, defining marriage as being between a man and a woman, despite seeking a special law for same-sex unions. Conservative groups opposing same-sex marriage claimed that the legislation disrespected the people’s will.

The bill, which offers same-sex couples similar legal protections for marriage as heterosexuals, takes effect on 24 May 2019, right after Tsai signs it into law.

“Today is a proud day for Taiwan. We demonstrate the value of kindness and inclusiveness from this land to the world,” Tsai told reporters after the new legislation passed. “Through legalisation, (we) ensure that everyone’s love is equal and everyone is treated equally,” she added, after having campaigned on a promise of marriage equality since her 2016 presidential election bid.

The law allows same-sex marriages between Taiwanese, with some exceptions applying when foreign nationals are involved. It permits adoption of children biologically related to at least one member of the same-sex couple.

The vote followed a long battle over marriage equality that culminated in a 2017 declaration by Taiwan constitutional court giving same-sex couples the right to marry and setting a deadline to 24 May to enact legislation.

Rights group Amnesty International welcomed the end of a “long and arduous campaign”. “We hope this landmark vote will generate waves across Asia and offer a much-needed boost in the struggle for equality for LGBTI people in the region,” highlighted Annie Huang, acting director of Amnesty International Taiwan.

The situation in Asia Pacific and in Hong Kong

Australia passed laws allowing same-sex marriage in 2017, the second country in the Asia Pacific region to do so after New Zealand passed a law on the subject back in 2013. Such unions are still not recognised in Hong Kong and Mainland China. In Japan, however, the debate about same-sex unions is gaining ground.

LGBT groups in Hong Kong reacted with joy and excitement to the developments in the neighbouring jurisdiction, which came as the local community held its annual flagship event “An evening of solidarity” last Friday at Chater Garden in Central, to mark the International Day against Homophobia, Transphobia and Biphobia.

Benita Chick from event organiser Pink Alliance, a non-profit group, said: “Hong Kong doesn’t even have a democracy, so it is difficult to see a marriage equality bill going through the legislature the way it is currently constituted.” She said the breakthrough in Taiwan happened first in the courts, so a judicial route may be the only way to push the issue in Hong Kong, citing the ongoing legal battle for spousal rights launched by gay senior immigration officer, Angus Leung. Angus initiated a judicial review against the Civil Service Bureau in late 2015, after it refused to grant Scott Adams – whom he married in New Zealand in 2014 – spousal benefits. Leung is also challenging the Inland Revenue Department for not letting the couple jointly declare their tax as heterosexual married individuals are permitted to do. The Court of First Instance originally ruled in favour of Leung in 2017 on the benefits issue, in what the local LGBT community hailed as “a rare judicial recognition”, despite losing the tax filing challenge. But in June 2018, the Court of Appeal sided with the government and overturned the lower court’s benefits decision, meaning Leung lost on both fronts. In September 2018, the Court of Final Appeal granted him leave to appeal against the decision related to the extension of spousal benefits as well as the one for tax joint filing. Judgement on the matter is expected to be delivered soon.

Speaking at the rally, Equal Opportunities Commission Chairman, Ricky Chu, welcomed developments in Taiwan, but said “each society has its unique social circumstances, and we cannot directly compare Taiwan’s new law to Hong Kong’s situation”. Chu said he would not seek a legislative timetable on same-sex marriage from the government but urged the community to “change tack” in favour of a pragmatic step-by-step approach to break the “eternal stalemate” in the city’s fight for equality. He stated: “Instead of focusing on abstract and ideological debates that we can never easily come to an agreement on, let’s make small progress in tackling discrimination at the workplace, schools and public facilities.”

Small steps for equal rights have been made in Hong Kong with the Court of Final Appeal ruling in favour of a lesbian expatriate in mid 2018, requiring immigration authorities to grant same-sex partners spousal visas previously available only to heterosexual married couples. The territory highest court sided with the British citizen, commonly known as QT, putting an end to a three-year legal battle against the restrictive immigration policy. The finding against the Immigration Department means the marriage status and civil union partnerships of same-sex couples will be recognised in Hong Kong for the specific purpose of a dependant visa, while the territory definition of marriage – “between a man and a woman” – remains unchanged. More details about the QT case can be found in the Bloomberg article “Hong Kong Top Court Grants Visa Rights to Same-Sex Partners”.

What can be done while waiting for further developments?

As highlighted in our previous article “Protecting Rights and Assets in a Same Sex Marriage”, through proper estate planning same-sex couples can enjoy nearly similar benefits as other couples in Hong Kong, and their children can be suitably protected. The common belief is that making a will is about inheritance, but actually there is much more to it – specifically in the case of same sex couples living in Hong Kong.

If you have not made a formal will, under Hong Kong law your assets are distributed in accordance with the Intestate Estate Ordinance, which is unlikely to be in accordance with your wishes or guarantee any protection of some of your loved ones. It is significant to understand that under current law if one partner dies without having made a formal will, her/ his same-sex partner is not automatically entitled to their estate, unless specific written directions are left. Moreover, any child in the relationship could remain totally unprotected.

 

Our team at Hugill & Ip has extensive experience in dealing with LGBT Rights and Estate Planning – so if you need further advice on these subject, get in touch with us.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Alfred Ip

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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