- Under section 40 of the Marriage Ordinance (Cap. 181), marriage in Hong Kong is still limited to the lifelong union of one man and one woman.
- Same-sex couples cannot legally marry in Hong Kong, and cannot apply for ancillary relief in Hong Kong.
- Since 2010, the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) has covered cohabiting relationships. A same-sex partner suffering domestic violence can apply to the court for an injunction, as long as the couple are in an intimate relationship and live together.
- Same-sex couples cannot end an overseas marriage in Hong Kong. They may have to return to the country where they married, or go to another country that allows the dissolution of a foreign same-sex marriage, to apply for a divorce.
Hong Kong law recognises Christian weddings and equivalent civil weddings. Same-sex couples cannot enter a legal marriage and do not receive the rights that come with one.
The sections below look at the debates on LGBT rights in Hong Kong, same-sex marriage, social welfare and divorce.
Marriage law and same-sex partners’ rights in Hong Kong
Hong Kong is gradually becoming more accepting of LGBT people, but under section 40 of the Marriage Ordinance, marriage is still limited to the lifelong union of one man and one woman.
Many see this as unfair to same-sex couples, because they cannot enjoy the benefits and protections of a legally married couple, such as tax allowances.
Because same-sex couples cannot legally marry in Hong Kong, they cannot enjoy benefits such as protection on divorce.
As more countries legalise same-sex marriage, the legal status of foreign same-sex marriages in Hong Kong has drawn attention.
The Inland Revenue Ordinance (Cap. 112) allows taxpayers who are legally married outside Hong Kong to claim allowances, but Hong Kong still defines marriage as between one man and one woman.
In addition, same-sex couples cannot apply for ancillary relief in Hong Kong, because the divorce legislation in force applies only to marriages between one man and one woman.
Please note
- Hong Kong has not accepted civil partnerships (also called same-sex unions). The Marriage Reform Ordinance (Cap. 178) defines marriage as “the voluntary union for life of one man and one woman, with no interference from third parties”.
- In 2004 the United Kingdom passed the Civil Partnership Act, which lets British citizens and holders of a British National (Overseas) passport (BNO) register a civil partnership in the UK.
- The Hong Kong SAR Government has strongly objected to the practice of the British Consulate-General in Hong Kong, so Hong Kong residents who hold a BNO passport cannot register a civil partnership in Hong Kong.
- Even if their civil partnership is recognised in the UK, they still cannot enjoy the rights that UK law gives them while in Hong Kong.
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What is the legal status of foreign same-sex marriages in Hong Kong?
Feel free to check your situation with us.
Same-sex marriage and LGBT people: the debates in society
Same-sex marriage is still controversial in Asia. For example, neither the Marriage Law of the People’s Republic of China nor Hong Kong law recognises same-sex marriage. Views in society are divided:
- Supporters say that same-sex marriage does not affect opposite-sex marriage, and that discriminating against it breaches the principle that everyone is equal before the law. They believe the government has no right to use the marriage system to interfere in private, intimate relationships.
- Opponents argue that same-sex couples cannot have children, which goes against the Chinese idea of carrying on the family line. They worry that children adopted by same-sex couples may face discrimination, and they see same-sex marriage as contrary to Chinese moral principles.
Same-sex marriage and traditional values in Asia
Since 2001, some countries in Europe, the Americas and Oceania have begun to recognise or legalise same-sex marriage.
In most parts of Asia, however, for religious and ethical reasons, people accept that homosexuality exists but reject same-sex marriage.
Same-sex relationships existed in ancient China, but were mostly described in disapproving terms. There was no same-sex marriage then, and a traditional marriage had to be between a man and a woman.
- The ancient Book of Rites says in its chapter on marriage that the main purposes of marriage are to honour the ancestors and to continue the family line. Same-sex marriage cannot achieve this and was seen as disrespectful to the ancestors.
- Same-sex marriage was also seen as against traditional morality and the husband-and-wife relationship, one of the Five Relationships, so it was not permitted at the time.
China also has a long history of life-cycle customs, covering every stage from birth to death. Under globalisation and modernisation, however, many traditional customs have been simplified or forgotten.
Newer customs are cheap and simple, but over-simplifying or abandoning tradition has also been criticised. How to pass on traditional life-cycle customs will be a major challenge in future.
Difficulties LGBT people face in society
Transgender people still face many challenges in daily life, in healthcare and in the law.
Many people know that the T in LGBT stands for transgender, and about the difficulties transgender people face in life. In fact, even using a public toilet can be a problem for them.
Most public toilets today are divided into men’s and women’s. Transgender people may choose according to their gender identity rather than their biological sex.
- This can easily cause alarm and discrimination among other people.
- In recent years, gender-neutral public toilets have eased the problem, letting people of any gender use a toilet with peace of mind.
- However, there are still few gender-neutral toilets, so the difficulty has not been fully resolved for transgender people.
In healthcare and the law, the challenges for transgender people are even more serious. A transgender person may or may not undergo medical gender reassignment therapy, that is, gender reassignment surgery.
Whether or not they seek medical help, earlier editions of the Diagnostic and Statistical Manual of Mental Disorders (DSM) classed gender identity disorder (GID) as a mental illness.
This is unfair to transgender people, because everyone should have the right to define their own gender identity, rather than be treated as having a disorder or illness.
The DSM-5, published in 2013, removed gender identity disorder from the manual and kept only gender dysphoria.
This change means that differences in gender identity are no longer treated as a disorder or illness, and it recognises the diversity of gender identity.
Gender-neutral toilets and the re-evaluation of gender identity disorder are a step forward, but transgender people still need more support and protection in many other areas.
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Legal protections for same-sex partners and married spouses in Hong Kong
Under the law as it stands, same-sex partners and spouses in Hong Kong enjoy a certain level of legal protection.
Same-sex partners and spouses can apply for a domestic violence injunction
Since 2010, the Domestic and Cohabitation Relationships Violence Ordinance has covered cohabiting relationships. Whether opposite-sex or same-sex, couples who are in an intimate relationship and live together are protected by the Ordinance.
- A same-sex partner suffering domestic violence can apply to the court for an injunction to keep the other party out of the shared home.
- A person who breaches the injunction will be arrested.
Taking part in medical decisions through advance directives and guardianship orders
So that a same-sex partner can take part in medical decisions, a patient can set up an advance care plan and an advance medical directive.
- Under the law, relatives and cohabitants (including same-sex partners) can apply to the court for a guardianship order, to make medical decisions and financial arrangements for a patient who lacks capacity.
Same-sex partners can apply to become the legal guardian of a child they are not related to by blood
- Under a High Court judgment in Hong Kong, a same-sex partner who has carried out parental duties and can prove they have cared for a child who is not related to them by blood may apply to become the child’s legal guardian and receive legal recognition.
Same-sex partners can claim the body, obtain the death certificate and collect the ashes
- The Government has promised to treat opposite-sex and same-sex partners equally. They can claim the body, obtain the death certificate and arrange the funeral.
- Under the amended law, a same-sex partner is entitled to collect the deceased’s ashes, although they rank below immediate family.
Same-sex spouses can apply for a dependant visa to come to Hong Kong
The Immigration Department has revised its policy on dependant visas for same-sex spouses. The spouse of a same-sex marriage or civil partnership registered overseas can now apply for a dependant visa to come to Hong Kong, if eligible.
Same-sex spouses of civil servants receive government benefits
- In a 2019 civil service case, the court ruled that the same-sex spouse of a civil servant, where the marriage was registered overseas, is entitled to the same benefits as an opposite-sex spouse, including medical, dental and housing allowances.
- The Government has changed the relevant policy so that civil servants can declare a same-sex marriage registered overseas.
Same-sex spouses can file joint tax returns
- That ruling gave same-sex spouses the right to file joint tax returns.
- In 2019 the Inland Revenue Department amended the wording on marriage in the Inland Revenue Ordinance and updated its eTAX system, so that taxpayers in a same-sex marriage registered overseas can file a joint return with their spouse.
Same-sex spouses can apply for public rental housing as a “two-person family”
In 2020 the High Court ruled that same-sex spouses are entitled to apply for public rental housing as a “two-person family”. The Housing Authority was required to treat same-sex spouses registered overseas equally in their right to wait for public rental housing.
Please note
- The Government has said it will appeal, so the outcome of the appeal is awaited.
Same-sex spouses can live in Home Ownership Scheme flats as “family members”
In a judicial review case, the High Court ruled that a same-sex spouse registered overseas should be treated as a “family member”.
A same-sex spouse registered overseas is entitled to move into the flat without paying a land premium, and has the right to transfer the flat.
Please note
- The Government has said it will appeal, so the outcome of the appeal is awaited.
Same-sex spouses can inherit their partner’s estate
In 2020 the High Court ruled that same-sex spouses have inheritance rights, so even if no will was made, the estate passes automatically to the surviving partner.
The court told the Government to amend the relevant ordinances to avoid treating same-sex spouses differently.
Please note
- The Government has said it will appeal, so the outcome of the appeal is awaited.
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What legal protections do same-sex spouses have in Hong Kong?
If in doubt, feel free to contact our dedicated consultants.
Same-sex marriage, divorce and the prospects for legalisation in Hong Kong
Under Hong Kong law, same-sex couples cannot end their overseas marriage in Hong Kong.
The Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) has extended the court’s jurisdiction to protect partner relationships that are not legally recognised, but it does not cover divorce or annulment of an overseas same-sex marriage.
As a result, same-sex couples may have to return to the country where they married, or go to another country that allows the dissolution of a foreign same-sex marriage, to apply for a divorce.
Please note
- In Hong Kong, same-sex couples do not need to report their divorce status to the Government, unless the law requires it or they need to for a particular purpose.
- For example, to remarry in Hong Kong, or to claim benefits, housing policy and tax concessions, they may need to give the Government their updated marital status.
The prospects for legalising same-sex marriage in Hong Kong
Although LGBT people are gaining support in Hong Kong, legalising same-sex marriage still faces many challenges, such as employment discrimination, surrogacy and adoption.
Hong Kong people have not reached a consensus on legalising same-sex marriage, but the courts can play a more active part in protecting LGBT rights. In W v Registrar of Marriages, for example, the court ruled that a transgender woman has the right to marry.
Hong Kong’s current marriage law leaves no room for recognising same-sex marriages formed overseas.
The traditional marriage system has changed enormously and is still changing. As a multicultural society, Hong Kong should watch how the legalisation of same-sex marriage abroad affects its conservative laws.
Until Hong Kong reaches a clear consensus on LGBT rights, legalising same-sex marriage remains a distant goal.
How can you make your marriage happier and prevent divorce?
Unhappiness in a marriage is sometimes down to both sides. To make your marriage happier, you can try the following:
- Communicate more: keep an open, honest line of communication with your partner and share your feelings, thoughts and needs. Understand what the other person needs, and look for ways to solve problems together.
- Support each other: support your partner when they are having a hard time, and congratulate them on their achievements. This builds trust and closeness.
- Make good memories together: spend good time together and build shared memories. You could plan a trip, join activities or hold a family gathering.
- Show respect and gratitude: respect your partner’s views and choices, and show appreciation for what they do. This helps protect each other’s dignity and self-respect.
- Keep a balanced pace of life: arrange work and life sensibly so that you both have enough time for each other. Proper rest and relaxation also matter for a healthy marriage.
- Bring back romance and closeness: have regular dates or create romantic moments to grow closer. You could give gifts, write a love letter or plan a special dinner.
Seek professional help
- If you both find it hard to resolve your marriage problems, consider asking for help from a psychotherapist, a marriage counsellor or a legal professional.
We hope these methods help you and your partner build a happier and better life together.
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Finding it hard to deal with problems in your marriage, and not sure what to do?
Get in touch, and a dedicated consultant will first understand your situation.
