On 18 September 2020, the LGBTQ community claimed another legal victory. The Court of First Instance, the High Court (CFI) 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 (IEO and IPFDO) (Cap.481) constituted unlawful discrimination on the grounds of sexual orientation. The CFI's decision marks yet another chapter in the LGBTQ community's fight for equality. This comes right after the CFI's decision earlier this year on the public housing rights for same-sex married couples.
In recent years, we have seen greater recognition of LGBTQ rights through a series of judicial challenges. However, same-sex marriages and civil partnerships are still not recognized under the laws of Hong Kong. The LGBTQ community are still denied many of the rights enjoyed by their heterosexual counterparts and they often have to pursue litigation for their rights to be recognized.
In this article, we will discuss the LGBTQ community's two latest victories Ng Hon Lam Edgar v. Secretary of Justice and Nick Infinger v. Hong Kong Housing Authority, the notion of protecting the "status of marriage" and "traditional family" in Hong Kong and the current status of rights given to same-sex married couples in Hong Kong.
Equal rights under inheritance and intestacy laws
In Ng Hon Lam Edgar v. Secretary of Justice, Edgar Ng and his partner married in London in January 2017. Edgar launched a legal challenge to the definitions of a "valid marriage", "husband" and "wife" under the inheritance and intestacy laws in Hong Kong.
Under intestacy, the deceased has not made a will, but a surviving spouse has certain entitlements. This includes an entitlement to a certain portion of the estate and all personal assets belongings of the intestate. A surviving spouse can also elect to take the matrimonial home in satisfaction of her entitlement in the estate instead. The purpose is to give effect to the presumed intention of the intestate as to who should be entitled to share in his estate after death, and to avoid rendering the survivor homeless.
Furthermore, surviving family members and dependents can apply for reasonable financial provision where the deceased's will has made no or insufficient financial provision for them. There are two standards for determining reasonable financial provision. For the surviving spouse, the question is whether it would be reasonable in all the circumstances, regardless of whether the spouse needs the provision for her maintenance. For everyone else, reasonable financial provision must be proved to be reasonable.
Therefore, the status of the "surviving spouse" is significant. However, the definition of "surviving spouse" is confined to the traditional notions of a "valid marriage" between a husband and a wife and therefore excluded same-sex married couples.
The court considered whether the exclusion of same-sex married couples violated the guarantees of equality in Article 25 of the Basic Law and Articles 1(1) and 22 of the Hong Kong Bill of Rights. The court gave a loud resounding "yes" to this question.
The Secretary of Justice argued that the differential treatment served three legitimate aims of:-
- Supporting and upholding the integrity of the traditional institution of marriage in Hong Kong;
- Encouraging heterosexual unmarried couples to marry; and
- Maintaining the overall coherence, consistency and workability of the laws in Hong Kong.
While the court recognized that these were legitimate aims, it did not find the denial of these benefits to same-sex married couples rationally connected to these aims. Therefore, it held that the differential treatment was unjustified and ruled that the proper remedy to be granted in this case was a declaration and remedial interpretation of the expression "valid marriage", "husband" and "wife" under the IEO and IPFDO.
Interestingly, the CFI refused to rule on the question of whether "marriage" could include "civil partnerships" and "civil unions" for the purpose of the inheritance and intestacy laws in Hong Kong as this would require a reform of the Marriage Ordinance and other related ordinances.
Public housing rights for same-sex couples
In the earlier case of Nick Infinger v. Hong Kong Housing Authority, the CFI 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. Nick Infinger and his partner got married in Richmond, Canada and upon returning to Hong Kong tried to apply for public housing as an "Ordinary Family" with a copy of their marriage certificate.
The Housing Authority rejected their application on the basis that the relationship between Nick and his family member(s) must either be "husband or wife, parent and child, or grandparent and grandchild". The Housing Authority cited the Oxford Dictionary, noting that "husband" meant "a married man in relation to his wife" and "wife" meant "a married woman especially in relation to her husband".
In Hong Kong, there are two main categories of public housing: (1) the General Application (which includes "Ordinary Families"); and (2) Applications by Non-Elderly One-Person Applicants. The Housing Authority's policy is to give priority to general applicants over non-elderly one-person applicants. For general applicants, the average waiting time is around 5.5 years, while the waiting time for non-elderly is substantially longer up to 12 years. Furthermore, if a general applicant passes away or moves out, his or her surviving spouse may take over the tenancy. This option is not available to non-elderly one-person applicants.
On 22 November 2018, Nick filed a judicial review to challenge the Housing Authority's decision on the grounds that it was discriminatory based on Nick and his partner's sexual orientation. The Housing Authority defended its differential treatment on the basis of the shortage of public housing in Hong Kong.
The CFI accepted the Housing Authority's argument that there is a need to protect and prioritize the public housing of "traditional families" but, in the end, the CFI ruled in favor of Nick, concluding that the differential treatment could not be justified. The Housing Authority was unable to provide any evidence that by not allowing same-sex married couples to apply as "Ordinary Families" would make any difference to the overall availability of public housing in Hong Kong.
Protecting the "traditional family"?
Edgar and Nick’s cases represent the latest in a series of legal challenges against discrimination of LGBTQs in Hong Kong. In all the cases, arguments concerning the unique status of marriage and the need to protect traditional families were raised. At the same time, it was acknowledged that same-sex married couples and heterosexual married couples are in equivalent relationships characteristically indistinguishable from one another.
In Director of Immigration v. QT, the Court of Final Appeal (CFA) pointed out that same-sex and opposite-sex couples have the same capacity to share a life together, make a home together, depend on one another, and love each other.
In Leung Chun Kwong v. Secretary for the Civil Service and Anor, the CFA noted that same-sex marriages share the same characteristics of publicity and exclusivity that distinguish heterosexual marriages.
Yet, after all this analysis, in each of the cases, the judges carefully tip-toed around the elephant in the room. That is, the issue of recognizing same-sex marriages under the laws of Hong Kong. In both CFA cases the Judges acknowledged that the majority of the community of Hong Kong did not support same-sex marriage, but that this was not a factor which would affect their treatment of the minority which would be inimical in principle to fundamental rights.
Not quite there
It appears that Hong Kong is not quite ready to recognize same-sex marriage. In another judicial challenge in October 2019, MK v. Government of HKSAR, the CFI was faced with whether the meaning of "marriage" under Article 37 of the Basic Law (the freedom of marriage) could be extended to same-sex couples.
The CFI acknowledged the international developments recognizing same-sex marriage, but noted that Hong Kong public opinion was still divided. The Court concluded that Article 37 only protected the rights of heterosexual couples to marry and therefore a denial of the right to marry did not constitute a violation of their constitutional rights.
The Court specifically said in a postscript to this case that it had adopted a strict legal approach to the questions posed, but nevertheless urged the Government to undertake a comprehensive review on the matter.
In the past few years, we have seen a growing momentum in the LGBTQ community's quest for equality and a greater acceptance by the public. This has led to a number of welcome changes to the law. Although these changes have been incremental, they have introduced options in terms of wealth, tax and estate planning to LGBTQ couples which were previously out of reach and the Edgar Ng case opened important doors to LGBTQ couples in the context of intestacy and inheritance laws. It seems that the courts have often recognized the fact that Hong Kong has always prided itself on being an international hub and global financial center, and in order to stay competitive and inclusive, there would need to be a change in the law.
In the meantime, our LGBTQ's community's quest to equality continues and we encourage LGBTQ couples to stay abreast of the changes and plan ahead for the future in view of these emerging legal developments– so stay tuned.