December 11, 2023

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Taiwan-Hong Kong couple wins cross-national same-sex marriage lawsuit

Taipei, Dec. 29 (CNA) A Taiwanese woman and her female Hong Kong partner won their marriage lawsuit on Thursday morning as a court in Taipei ordered their household registration office to reinstate the marriage registration of the cross-national same-sex couple.

In its ruling, the Taipei High Administrative Court revoked the decision to annul the marriage registration of the Taiwanese national, surnamed Liu (劉), and her partner, surnamed Tse (謝), by the Household Registration Office of Taipei’s Xinyi District in June 2020.

In effect, the ruling will see the couple’s marriage registration, initially approved by the same office in August 2019, reinstated, barring an appeal lodged by the office within 20 days of receiving the verdict document.

At a press conference held outside the court building, Liu said it was “ridiculous” that the authorities determined whether a Taiwanese national could marry based on their partner’s nationality.

According to Liu, the office initially approved the couple’s marriage registration in August 2019, shortly after they got married in the United States, because it decided that Tse, a British National (Overseas) (BNO) passport holder, should receive the same treatment as a British national.

However, after Tse, 35, applied for a dependent visa from the National Immigration Agency (NIA) in January 2020, the household registration office, notified by the NIA that a BNO passport holder should be regarded as a Hong Kong resident, decided to invalidate the couple’s marriage registration.

Subsequently, Tse’s application for the dependent visa was rejected by the NIA, and she is currently staying in Taipei on a student visa, which she had obtained after quitting her job in Hong Kong and applying to study in Taiwan.

The couple initially appealed the household registration office’s invalidation decision, but after this was rejected, decided to take their case to court in 2020, with the pro bono support of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR).

The office’s decision was based on a directive issued by the Ministry of the Interior (MOI), which cited Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements as stipulating that the formation of a marriage is governed by the national law of each party’s home country.

The MOI directive, according to TAPCPR, has to date prevented more than 500 cross-national same-sex couples from officially tying the knot in Taiwan, citing internal surveys.

TAPCPR lawyer Victoria Hsu (許秀雯) said at the press event that Thursday’s ruling marked the fifth time the court had proved the MOI’s rules to be “wrong” since the TAPCPR began helping cross-national same-sex couples sue the government in order to register their marriages.

Since March 2021, the Taipei High Administrative Court has ruled in favor of four cross-national same-sex couples involving partners from Malaysia, Macao, Singapore and Japan in their marriage lawsuits.

In some of these cases, the court adopted Article 8 of the same legislation, which states the law of a foreign country shall not be applied if the result of such application leads to “a violation of the public order or boni mores of the Republic of China,” as a legal basis.

Despite that, the MOI, which governs matrimonial affairs, insists it is legally bound to continue rejecting the registration of marriages filed by couples like Liu and Tse in accordance with Article 46.

Liu, a 35-year-old office employee, said while winning her lawsuit was “good news,” she and Tse felt “happy with a heavy heart,” as the ruling could not be applied to other gay couples facing similar obstacles.

A Malaysian national surnamed Tan (陳), who spoke on behalf of a community of more than 100 cross-national same-sex couples in Taiwan, said the MOI’s continued disregard of their rights was an act of “discrimination.”

According to Tan, the MOI had made similar comments whenever a household registration office lost a marriage lawsuit filed by a cross-national gay couple to evade its responsibility, claiming it was unable to change its rules until a draft amendment proposed by the Judicial Yuan is approved by the Legislature.

The proposed amendment, unveiled by the Judicial Yuan in January 2021, is still awaiting the Cabinet’s approval before it can be voted on by lawmakers.

TAPCPR Secretary-General Chien Chih-chieh (簡至潔), meanwhile, said former Interior Minister Hsu Kuo-yung (徐國勇), who resigned in mid-December over personal health reasons, should be blamed for the ministry’s “negligence” which has compromised the rights of cross-national same-sex couples in which one partner is from a country or region where gay marriage is not legalized.

She called on the next interior minister, who is yet to be appointed, to “make corrections” by withdrawing the ministry’s directive so that those couples can freely register their marriages in Taiwan.