What are your rights as a same-sex couple in Hong Kong?

The United States’ counsel general to Hong Kong and his husband recently announced the birth of their son. The couple expressed their gratitude to residents for their “kindness and support” after becoming fathers. They join the many same-sex couples in Hong Kong who are living and now benefiting from recent cultural and legal changes in relation to same-sex relationships.

Although same-sex marriage or civil unions are not recognised in Hong Kong, couples can now access many of the benefits that come with matrimony following recent changes. Here, we look at some of those changes and their benefits for same-sex couples living in Hong Kong.

Parental rights

Last year, the well-publicised case of S v KG [2021] HKCFI1401 ruled that same-sex partners can enjoy equal parental rights over their children.

This case was brought by the biological mother of the children and the Respondent was her same-sex partner. Whilst their first child was born in Australia with both parties registered as legal parents under Australian law, the second child was born in Hong Kong and it was not possible for the Respondent to be listed as the child’s parent. This was despite the children being accustomed to having two mothers and having a strong bond with both their mothers. The application was brought in order to formalise the Respondent’s parental rights and guarantee her legal status to her children should anything happen to the biological mother.

As a result, it was held that a non-biological parent of a child born by a former same-sex partner should be granted guardianship rights, joint custody and shared care over his/her children.

Visas

Following the landmark case of QT v Director of Immigration [2018] HKCFA 28, civil partners and same-sex spouses are now eligible for dependent visas.

The Immigration Department notes that such relationships normally have the following features: (a) the entering into and dissolution of the relationship are governed by legislation of the place where it is entered into; (b) the relationship requires registration by the competent authority specified by the legislation of the place where it is entered into; (c) the registration is evidenced in a written instrument issued by the competent authority; and (d) parties to the relationship have a mutual commitment to a shared life akin to spouses to the exclusion of others on a permanent basis.

Notably, such relationships do not include de facto spouse, partners in cohabitation, fiancé/fiancée, etc.

Inheritance

Following the case of Ng Hon Lam Edgar v Secretary for Justice [2020] HKCFI 2412, same-sex marriage couples can now claim as a “surviving spouse” under the Intestates Estate Ordinance and Inheritance (Provision for Family and Dependents) Ordinance.

This case concerned the applicant and same-sex partner who had married in London. The applicants had purchased a Home Ownership Scheme flat under the Housing Ordinance (Cap.283) to be used as a matrimonial home and the applicant was concerned that his estate would not pass to his partner under the Intestates’ Estates Ordinance (Cap.73). The court ruled that the exclusion of same-sex married couples right to claim as “surviving spouses” under the Intestates’ Estates Ordinance (Cap.73) and the Inheritance (Provision for Family and Dependents) Ordinance (Cap.481) constituted unlawful discrimination on the grounds of sexual orientation.

Furthermore, following a legal challenge last year by gay widower Henry Li, the Department of Justice has clarified that there is no distinction between same-sex and opposite-sex spouses for the term ‘spouse’ under the Coroners’ Ordinance. This relates to after-death arrangements for deceased partners such as body identification, when receiving services at the Coroner’s court, in after-death services provided by the Food and Environmental Hygiene Department, and when applying for a death certificate from the Immigration Department.

Public rental housing

Same-sex married couples are now able to apply for public rental housing, following the case of Infinger Nick v Hong Kong Housing Authority [2020] HKCFI 329.

The applicant had applied to the Housing Authority (HA) for Public Renting Housing as “Ordinary Families” under the “General Application” category. However, the HA determined that the couple were ineligible to share a public housing unit because they were of the same sex. The court ruled that the Housing Authority’s policy to exclude same-sex married couples from applying for public rental housing as “ordinary families” was unlawful and unconstitutional.

However, the Court of Appeal is currently hearing an appeal in relation to this case and we wait to hear whether that appeal will be successful.

Tax assessment

Same-sex married couples can elect for joint tax assessment or personal assessment jointly with their spouse and claim tax allowances or deductions in respect of his or her spouse.

Following the judgement of the Court of Final Appeal in Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127, a same-sex marriage would be regarded as a valid marriage for the purposes of the Inland Revenue Ordinance. The appellant in this case entered into a same-sex marriage in New Zealand, but when returning to Hong Kong was informed by the Commissioner of Inland Revenue that he was not entitled to elect for joint assessment with his same-sex marriage partner because their same-sex marriage did not fall within the meaning of section 2(1) of the Ordinance. The court found that the appellant had been unlawfully discriminated against on the basis of sexual orientation.

Conclusion

As can be seen from the cases listed above, through a series of judicial challenges the courts have recognised certain rights for same-sex couples in Hong Kong. However, it is important to note that many obstacles do remain. For example, divorcing a same-sex partner in Hong Kong is not currently possible and couples will need to commence proceedings abroad.

Whilst the law develops in Hong Kong, same-sex couples should consider what steps they can take to protect themselves and their loved ones. This may include a Will, Enduring Power of Attorney, Trust, or Deed of Guardianship. Such steps will depend on the individual circumstances of each couple.