Groundbreaking Court Decision Expands Transnational Same-Sex Marriage in Taiwan

Groundbreaking Court Decision Expands Transnational Same-Sex Marriage in Taiwan
Photo Credit: CNA

What you need to know

A high court in Taipei ruled today a Taiwanese and Macau citizen should be allowed to get married. They will be the first same-sex couple of a Taiwanese and Macau citizen to have their marriage recognized in Taiwan.

A Taipei high court has ruled that a Taiwanese and Macau citizen have the right to register as a married couple, in a groundbreaking move that brings Taiwan closer to marriage equality among transnational same-sex couples regardless of nationality.

The couple, Shin-chi and A-ku, filed a lawsuit against the government in October 2019 after the Zhongzheng District Household Registration Office in Taipei refused their application for marriage registration.

Taiwan, despite having legalized same-sex marriage two years ago, currently does not allow citizens to marry a partner from a country where it has not yet been legalized. 

According to the Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, “the formation of a marriage is governed by the national law of each party.” Macau is not on the list of 29 countries with legal same-sex marriage.

But Taiwanese law applies to A-ku, a Macau man who has been living in Taiwan since 2017, lawyers representing the couple claimed. They said that a Macau citizen’s marital status is determined by the law of their place of residence, according to Macau’s civil law.

The household registration office defended its denial of a marriage permit based on same-sex marriage holding no legal status in Macau, but the Taipei High Administrative Court accepted the lawyers’ argument and delivered a full victory today to the couple. The office is required to permit the marriage, though the case can be appealed.

Outside the court, A-ku said he hopes today’s ruling will pave the way for the inclusion of all transnational same-sex couples in Taiwan’s law, adding that many are still waiting for the ruling on their own cases.

The Taiwanese-Macau couple was the first that lawyers of the Taiwan Alliance to Promote Civil Partnership Rights have represented to push for extending marriage rights to Taiwanese citizens whose partner comes from a country where same-sex marriage remains illegal. The NGO has helped file a number of lawsuits involving couples of various nationalities, on several of which the court will make a final ruling in the coming months.

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Photo Credit: Reuters / TPG Images
Two same-sex couples take a group photo during a military mass wedding in Taoyuan, Taiwan, October 30, 2020.

After today’s ruling, Shin-chi and A-ku should be the first same-sex couple of a Taiwanese and Macau citizen to have their marriage recognized in Taiwan, TAPCPR said in a Facebook post.

However, TAPCPR’s secretary-general Chien Tsu-chieh said the court decision is “ad-hoc” and does not imply that Taiwanese citizens are allowed to marry any Macau citizen. If their place of residence is not Taiwan, they are likely excluded from marriage registration in the country, she added.

In Taiwan, when same-sex marriage involves a foreign national, government officials have to decide if Taiwanese law or that of a foreign country applies before concluding whether they can register marriage with a Taiwanese citizen. In the case of A-ku, the court ruled that Taiwan’s law, which allows same-sex marriage, applied, but it could possibly not be the case for other foreign nationals.

“Since 2017, the TAPCPR has been advocating for solving the problem by applying the Article 8 of the Act,” Chien said, a clause stating that foreign laws should not be applied — if doing so leads to the violation of “the public order or good morals.”

“The legalization of same-sex marriage in Taiwan is the result of a constitutional interpretation, so it is against our legal system if a foreign country does not allow it and thus should not be applied,” Chien explained.

The same legal grounds were used by the Taipei High Administrative Court to revoke the decision in March by the Daan District Household Registration Office that denied gay rights activist Chi Chia-wei’s application to marry a Malaysian student.

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Photo Credit: Reuters / TPG Images
Supporter poses with gay rights activist Chi Chia-wei, left, during an event to support the International Day Against Homophobia, Transphobia, and Biphobia in Taipei, Taiwan, May 17, 2017.

In May 2019, soon after Taiwan legalized same-sex marriage by passing a bill, Chi set out to draw public attention to one of its loopholes by marrying a foreign national hailing from a country without same-sex marriage and later taking legal action when his request was denied.

The court ordered the household registration office to permit the marriage based on Article 8 but only after receiving the required documentation from the Malaysian student, which he had failed to provide to apply for registration.

With Chi’s “half won, half lost case,” Chien said, “it is now enough for the Ministry of the Interior (under the Executive Yuan) to notify household registration offices across the country that the Article 8 applies to same-sex couples; this way, the problem for transnational couples will be solved.”

In late February, Taiwan’s Judicial Yuan submitted a draft bill to the Legislative Yuan that would make it possible for a Taiwanese citizen to marry their same-sex partner no matter where they are from. The relationship between a Taiwanese and Chinese partner, governed by another act, is not included in the bill.

Chien believes this bill keeps true equality at arm’s length because two foreign nationals are likely to be denied marriage registration in Taiwan if one or both of them are not from the list of 29 countries with legal same-sex marriage.

“Within Taiwan’s border, we should ensure everyone is equal and has the freedom to marry, no matter where they are from,” Chien said. “We at least have to ensure foreigners with an Alien Resident Certificate are not deprived of such freedom.”

READ NEXT: A Bittersweet Victory on Same Sex Marriage in Japan  

TNL Editor: Nicholas Haggerty (@thenewslensintl)

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