• news-banner

    Expert Insights

Hong Kong’s top court makes declaration in favour of same-sex partnerships

In a landmark Judgment by the Court of Final Appeal, there has been a ruling in favour of same-sex partnerships which requires the government to establish a framework for legal recognition of same-sex partnerships, such as civil partnerships. Despite being a very positive step for LGBTQ rights in Hong Kong, the court did not go as far as endorsing full marriage rights for same-sex couples.

The Appellant sought a declaration from the court, which is also commonly known as a declaratory judgment or declaratory relief, which is a form of relief generally sought by individuals from the court to clarify their rights.

The Appellant, a Hong Kong resident, was in a same-sex relationship with his partner in Hong Kong. They were married in the US in 2013. Under Hong Kong law, there is no provision allowing for same-sex marriages, nor for same-sex marriages entered into abroad to be recognised. The Appellant brought judicial review proceedings against the fact that his marriage was not recognised in Hong Kong and argued that this constituted discrimination and a violation of his constitutional rights to equality and to protection against interference with his right to privacy and family. He sought a declaration on whether:

  • he has a constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of Hong Kong Bill of Rights;
  • alternatively, the absence of any alternative means of legal recognition of same-sex partnerships constitutes a violation of Article 14 of the Hong Kong Bill of Rights (on privacy) and/or Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (on equality); and
  • 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.

The application was initially dismissed by the Court of First Instance and the Court of Appeal and then went to the Court of Final Appeal, who unanimously dismissed the first and third points above, but allowed the second on a 3-2 majority ruling.

The Court made a declaration which stated that the government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as civil partnerships) and that the government must provide for appropriate rights to ensure compliance with this obligation.

If the government do not comply, the Appellant will be entitled to return to Court to seek damages, or to seek an order to enforce the rights set out in the Court of Final Appeal’s declaration. In the event of such proceedings, the government will not be able to successfully defend its stance. Additionally, should the government fail to comply with the declaration, they would actively be in breach of the law, meaning other affected individuals may also seek to claim compensatory relief.

It is important to note that the case is not yet completely resolved as both parties have an opportunity to lodge further written submissions by 26 September 2023, upon which a final order will be made by the court. As the Judgment currently stands, once this final order has been made, the government will have two years to comply with the declaration. The final order is able to modify the declaration meaning the Court could either backtrack or confirm its decision to compel the government to make the changes.

Our thinking

  • New Hong Kong crypto regime: trading platforms falling foul already?

    Patrick Chan

    Insights

  • What next for HS2?

    Richard Flenley

    Quick Reads

  • Felicity Chapman writes for Insider Media on alternatives to court for divorcing business owners

    Felicity Chapman

    In the Press

  • Mediation as a pillar of dispute resolution: it’s happening, embrace it

    Jamie Cartwright

    Quick Reads

  • A warning to all businesses: significant fine underscores the importance of maintaining workplace Health & Safety

    Rory Partridge

    Quick Reads

  • Vanessa Duff writes for Wealth Briefing on how the Bank of Mum and Dad can help young people get on the property ladder

    Vanessa Duff

    In the Press

  • Common construction claims in Bahrain

    Mazin Al Mardhi

    Insights

  • Sarah Higgins and David Wells-Cole write for Wealth Briefing on the pitfalls of using unregulated legal services

    Sarah Higgins

    In the Press

  • Enforcement of Foreign Judgments - UAE: DIFC

    Patrick Gearon FCIArb

    Insights

  • Back to School: How should recently separated parents face the new term?

    David Hansford

    Quick Reads

  • Financial Reporter quotes Rhys Novak on a new FCA review into the treatment of PEPs

    Rhys Novak

    In the Press

  • South China Morning Post quotes Lisa Wong on Hong Kong's surrogacy rules

    Lisa Wong

    In the Press

  • Enforcement of Judgments

    Patrick Gearon FCIArb

    Insights

  • The Family Fund: Bank of Mum & Dad 2.0

    Vanessa Duff

    Quick Reads

  • The Supreme Court's decision in PACCAR: litigation funding stopped in its trucks?

    Hanh Nguyen

    Insights

  • The Financial Times quotes James Riby on London’s reputation as ‘divorce capital’ of the world

    James Riby

    In the Press

  • Inside Britney and Sam’s $10m prenup

    Shivi Rajput

    Quick Reads

  • Mind your Language !

    Vanessa Duff

    Quick Reads

  • Investigating fraud: an expansion of legal professional privilege?

    Simon Heatley

    Insights

  • Oops!....I did it again - Britney's third divorce

    Charlotte Posnansky

    Quick Reads

  • NSPCC urges Government to protect children from domestic abuse during holidays

    Shivi Rajput

    Quick Reads

  • Record success for Charles Russell Speechlys in Chambers High Net Worth 2023 directory

    Piers Master

    News

  • Product compliance and Brexit - UK Government concedes to CE markings indefinite recognition

    Jamie Cartwright

    Quick Reads

  • Recognising financial abuse in a relationship

    Vanessa Duff

    Quick Reads

  • Top 10 things you may not know about Prenuptial and Postnuptial Agreements

    Vanessa Duff

    Insights

  • Million Dollar Footballer With No Assets?

    David Carver

    Quick Reads

  • Trading insolvently or trading out of difficulty? Are we being naughty or did we have the best intentions? Part 2

    Claudine Morgan

    Insights

  • Conflicts of Interest in International Commercial Arbitration

    Dalal Alhouti

    Insights

  • UAE and the Grey List: Brief Update

    Karl Masi

    Insights

  • eprivateclient quotes Sarah Higgins and David Wells-Cole on the CMA’s investigation into will-writing and quickie divorce legal services

    Sarah Higgins

    In the Press

  • Domestic abuse orders: worth the paper they’re written on?

    Lydia Hutchinson

    Insights

  • Are Parental Rights Equal for All Families?

    Vanessa Duff

    Quick Reads

  • Has the Orpéa plan impaired shareholder's consent? - Le plan de sauvegarde d'Orpéa n'a-t-il pas vicié le consentement des actionnaires historiques ?

    Dimitri-André Sonier

    Quick Reads

  • Atonement and post separation endeavour: wife keeps £1m gift from husband after his affair and will receive a share of his business’ future profits

    Sophia Leeder

    Quick Reads

  • Don’t push it… Quincecare duty clarified

    Caroline Greenwell

    Quick Reads

  • Pandora Papers: HMRC nudge taxpayers to come out of their box

    Hugh Gunson

    Quick Reads

  • Making BitCoin a BitClearer

    Charlotte Posnansky

    Quick Reads

  • Can a financial claim in divorce proceed after the death of either party?

    Sarah Higgins

    Quick Reads

  • Second Time Weddings - Family Law (I) dos and don’ts

    Miranda Fisher

    Quick Reads

Back to top