Partial Win For LGBT Rights In Hong Kong

In what is being viewed as a partial victory for LGBTQ rights, Hong Kong’s top court on Tuesday ruled that the city’s government must establish a legal framework to recognise same-sex partnerships while it would not recognise same-sex marriages.

The Hong Kong Court of Final Appeal (“CFA”) handed down its judgment in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28.

The Appellant in the case and his partner entered into a same-sex marriage in New York in 2013, where same-sex marriage is legal. The Appellant applied for a judicial review in Hong Kong, seeking the CFA’s ruling on three questions:-

• whether he has a constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (“BOR”);
• alternatively, whether the absence of any alternative means of legal recognition of same-sex relationships constitutes a violation of Article 14 of the Hong Kong Bill of Rights and/or Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights; and
• whether the non-recognition of foreign same-sex marriage constitutes a violation of Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights.

On the issue of same-sex marriage, the CFA ruled that the constitutional right to marriage guaranteed under Article 37 of the Basic Law and Article 19(2) of the BOR is confined to heterosexual marriage.

The court also found that the appellant cannot rely on the general rights of equality to claim a constitutional right to same-sex marriage or recognition of a same-sex marriage, as it would be inconsistent with the rights in Article 37 and Article 19(2) of the BOR.

In a positive development for LGBTQ rights, the majority of the CFA declared that the absence of alternative means of legal recognition of same-sex partnerships constitutes a violation of the HKSAR Government’s positive duty under Article 14 of the BOR to establish such a framework.

However, the CFA suspended the declaration for a period of two years to afford the HKSAR Government time to comply with the obligation.

What does this mean for same-sex couples?

The HKSAR Government will have two years to devise a legal framework to recognise same-sex partnerships.

While it is difficult to speculate what specific legal protection will be given to same-sex partnerships, we hope this will bring real change to this area of law and lead to enhanced rights approaching those enjoyed by heterosexual married couples.

In the meantime, those in same-sex partnerships will not be afforded legal protection under matrimonial law enjoyed by marriages recognised in Hong Kong, such as financial rights.

Currently, there is no legal protection for the division of the couple’s assets or the provision of maintenance for financial support following the breakdown of a same-sex partnership.

Any disputes between same-sex couples over jointly owned assets or other financial issues will not be as clear-cut and will be resolved by legal principles outside of matrimonial law, such as contractual law or the law of equity.

For same-sex couples, it would be a good idea to record the couple’s financial arrangements in an agreement to ensure that their rights are protected. Please reach out to us if we can be of any assistance.