[Ultimate Sorting] A brief look at 10 legal protections for same-sex couples/spouses in Hong Kong

Written by: Jansen

Text editors: Bunny, Cindy

Website Editor: EQ

In recent years, a series of successful judicial reviews for gender equality in Hong Kong have resulted in more equal treatment of same-sex couples in areas such as housing distribution, tax filing, inheritance, and civil servant benefits. In addition, public institutions and courts have also protected the rights and interests of same-sex spouses to a certain extent in terms of medical treatment, funeral arrangements, and prevention of domestic violence. Some protections even benefit unmarried same-sex couples. Therefore, point G has compiled a list of 10 rights of same-sex couples/spouses in Hong Kong, and introduced them one by one.

 Editor’s Note: Since same-sex marriage is not approved in Hong Kong, the term “same-sex spouse” in this article refers to gay couples who have registered their marriage or civil union abroad, while “same-sex couple” generally refers to couples who have not had a marriage or civil union. Although many countries treat same-sex spouses and partners equally, unfortunately in Hong Kong, many legal protections only benefit same-sex spouses.

1. Victims of domestic violence can apply for an injunction (for same-sex couples/spouses)

Since 2010, the scope of application of the Domestic and Cohabitation Relationships Violence Ordinance has been extended from spouses to cohabitation relationships. It means that whether it is of the opposite sex or the same sex, as long as it is "living together as a (former) couple in an intimate relationship", it is also protected by the Ordinance. If a same-sex spouse or cohabiting couple is unfortunately harassed or abused by the other party, they can obtain an application form for an injunction from the lawyer, the Legal Aid Department or the Family Court Registry, and apply to the court to prohibit the abuser from entering the same residence in accordance with the Ordinance; if the other party violates the Injunctive order, can be arrested on the spot.

2. Involve the other half in medical decisions through guardianship orders and advance directives (for same-sex couples/spouses)

In Hong Kong, doctors will decide the most appropriate medical procedure according to the best interests and wishes of the patient. Unless the patient is incapacitated, the family's wishes will be consulted. Since Hong Kong does not fully recognize same-sex relationships, in order to allow same-sex couples to participate in medical decisions and avoid disagreements with other family members, patients can make advance instructions on treatment arrangements: for example , the HA's "Advance Care Plan" allows critically ill Patients, family members and doctors communicate in advance about treatment plans, who will take care of them and how to take care of them, so that same-sex couples can participate in medical decision-making; patients can also make "advance medical instructions" such as refusal of intubation and cardiopulmonary resuscitation. Doctors and all relatives can respect their wishes.

In addition, relatives and cohabitants (including same-sex couples) of mentally incapacitated patients (such as mental illness, severe brain degeneration, brain damage due to stroke or accident, etc.) under the Mental Health Ordinance may apply to the court Guardianship orders , making medical decisions and related financial arrangements for patients. The "Electronic Health Records Sharing System Ordinance" also extends the "decision maker" to the patient's family members and cohabitants, which means that same-sex couples can act as a "decision maker" to determine the registration of their medical records when the patient is unconscious. and communication matters.

Extended reading: [Two mothers] The high court will allow unrelated gay mothers to be joint guardians. More "Rainbow Families" are legally recognized

3. Gay parents can apply to become guardians of unrelated children (for same-sex couples/spouses)

Last year, when a lesbian mother applied for guardianship, the High Court cited the "welfare principle" for the first time, granting same-sex couples who have shared a child for many years but are not related to the child to have the same guardianship. This case means that same-sex couples who can prove to the court that they have fulfilled their parental duties, such as feeding, caring, caring, educating and protecting their children, can apply even if one of the partners is not related to the child by blood, or even if the partners are not married or in a civil union. By becoming the legal guardian of the children, the parent-child relationship of the "rainbow family" is legally recognized.

Extended reading: A gay man was rejected for handling the funeral of his deceased husband. The government admits his mistake and withdraws the judicial review applicant: finally dignified and thrown into the ashes

4. Same-sex couples can claim remains, apply for death certificates and collect ashes (for same-sex couples/spouses)

Last year, the government admitted its mistake in a judicial review of a same-sex spouse's funeral , promising that all government departments will treat the opposite sex equally in matters such as claiming remains, arranging cemeteries, cremation and ashes services, and handling death certificates. and same-sex couples. For example, when the police arrange a mortuary to identify a body, they will not distinguish between opposite-sex and same-sex couples; same-sex couples can arrange cemetery, cremation and ashes services for the other half. Same-sex couples can claim the remains, go through formalities and carry out funeral ceremonies as long as they bring their own and the deceased's identification documents, as well as relevant medical and cause-of-death certificates.

In addition, according to the revised Private Columbaria Ordinance, in addition to relatives and personal representatives, as long as the deceased lived with him for at least two years before his death, even if he was not related by blood or marriage, he had the right to act as a "related person" "To collect the ashes of the deceased at the close of the columbarium. In other words, same-sex spouses and partners are entitled to the other half's ashes, but not in the same order as the deceased's immediate family members.

Extended reading: The final court rejected 5:0! Immigration Department Defeats QT Case, Married Same-Sex Couples Get Dependent Visas

5. Same-sex spouses can apply for a dependant visa to come to Hong Kong

After the "final defeat" of the 2018 QT case was ruled unconstitutional by the court, the Immigration Department revised the entry policy for same-sex spouses to come to Hong Kong with a dependant visa. "Rejecting same-sex couples from applying for visas. Now as long as they are overseas registered, legally binding same-sex or civil union spouses, they will be eligible to apply for a visa to come to Hong Kong as a dependant.

Further reading: [Organization of Judicial Review Cases] Civil Service Same-sex Spouse Welfare Case (Liang Zhengang Case)

6. Same-sex spouses of civil servants can enjoy government benefits

In 2019, Hong Kong's first case for civil servant same-sex spouse benefits (Leung Chun-gang case) was "ultimately successful" . The court ruled that same-sex spouses of civil servants registered overseas are entitled to civil servant spousal benefits in the same way as opposite-sex spouses. The Civil Service Bureau confirmed last year that it had revised its policy and set up a mechanism for civil servants to declare same-sex marriages they entered into overseas, and their spouses would be entitled to allowances and benefits including medical treatment, dental services and housing.

7. Same-sex spouses are entitled to joint tax returns

The Liang Zhengang case also successfully fought for the right to joint tax returns for same-sex couples. In order to follow up on the ruling of the Court of Final Appeal, the Inland Revenue Department revised the terms related to marriage in the Inland Revenue Ordinance in 2019, replacing "husband and wife" with "married persons and their spouses", and updated the eTAX system so that Same-sex taxpayers overseas may file joint tax returns with their same-sex spouses and are entitled to claim allowances and tax deductions in respect of their spouses under the Ordinance.

8. Same-sex spouses can apply for public housing as a "two-person family"*

* The government has indicated that it will appeal, pending the outcome of the appeal

The High Court ruled in 2020 that same-sex couples have the right to apply for public housing in "two-person households". The HA cannot deny the equal rights of overseas registered same-sex couples to wait for public housing. The HA has in the past insisted that same-sex couples do not meet the definition of "couple", but the judge argued that low-income same-sex couples have the same need for cheap housing as low-income heterosexual couples. Since the HA recognizes heterosexual couples married overseas, it should be able to recognize same-sex couples registered overseas, thus ruling the HA discriminatory and unconstitutional.

Further reading: [Belated Victory] A gay man who was refused to live in the same housing after marriage wins the case against the Housing Authority for review of his deceased husband

9. Same-sex spouses can live in HOS as "family members"*

* The government has indicated that it will appeal, pending the outcome of the appeal

For a long time, the HA did not recognize same-sex spouses registered overseas as "family members". Therefore, HOS buyers have to pay additional land premiums to allow same-sex spouses to move into the flat to live together. However, in a judicial review challenging the HA's discrimination last year, the High Court ruled that overseas-registered same-sex spouses should also be regarded as "family members", entitled to the same rights as opposite-sex spouses and close blood relatives without premium payment Move into the unit and have the right to transfer the unit.

Further reading: [Organization of Judicial Review Cases] Same-sex Spouse Inheritance Case (Wu Hanlin)

10. Same-sex spouses can inherit the other half of the estate*

* The government has indicated that it will appeal, pending the outcome of the appeal

The High Court ruled in 2020 that same-sex couples have the right to inherit the estate , which means that even if the same-sex couple did not make a will before death, the estate after death would still be automatically inherited by the other half. Practice in line with opposite-sex spouses. The court also asked the government to amend the Intestate Estates Ordinance and the Inheritance (Maintenance and Dependents) Ordinance, and redefine the terms "husband", "wife" and "valid marriage" in the two ordinances to avoid Discrimination against same-sex spouses.

Want to learn about the history and impact of judicial review of Hong Kong's gender/gender minorities? Go to G-spot TV's " Judicial Review Database " now!

Further reading: Hong Kong gender/gender minority judicial review cases

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