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.