A Step forward: Recognition of Same Sex Partnership and Succession Planning

September 6, 2023by RKS Editor0

Sarina Cheung

Modern romantic relationships have evolved beyond the traditional confines of the institution known as “marriage”, we witness a diverse array of individuals forging their bonds through various forms of commitment, such as de facto relationships, civil partnerships, and same sex marriages, to name a few. Thus far, same-sex marriages are legally performed and recognised in 34 countries around the globe, yet Hong Kong does not legally recognise same sex marriages, despite being renowned for its progressive outlook. Be that as it may, it seems that the Hong Kong Court of Final Appeal has taken a small step forward in its latest judgment of Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28.

In this case, Mr Sham failed in his appeal to have same sex marriage recognised in Hong Kong, but the Court of Final Appeal rules that the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bills of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and directs such obligation to be fulfilled in 2 years.

Prior to establishment of such regime, the current position of same sex couples in Hong Kong are as follows:

  • Inheritance Rights – subject to further higher court rulings and pursuant to current case law set out in Ng Hon Lan Edgar v Secretary for Justice [2021] HKCFI 1812, the parties to a same sex marriage can now inherit their spouse’s estate under the Intestate Estate Ordinance (Cap. 73) (“IEO”) and have the same rights as a spouse under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481).
  • Subsidized Housing – subject to discretionary consent from the Housing Authority, same sex couples could now be authorised occupants under the Housing Authorities’ spousal policy (Ng, Hon Lam Edgar & Li Yik Ho v. Hong Kong Housing Authority [2021] HKCFI 1812).
  • Tax reporting – parties of same sex marriages are now entitled to elect for joint assessment or personal assessment jointly with their spouse; and they are entitled to claim allowances or deductions in respect of their spouse (Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2019] HKCFA 19).
  • Divorce – parties of same sex marriages could not initiate divorce proceedings in Hong Kong as their marriage is not recognised in Hong Kong. Unless a party of the marriage has connections with other jurisdictions that enable an overseas divorce process, couples might end up not being able to divorce in case of a separation. This could create a lot of long term issues such as the rights of same sex married couples as referred to in the aforementioned areas and a confusion of their legal status.

It is still uncertain whether the rights of a “Spouse” under different area of laws would apply to civil partners once the Government established a civil partnership regime as directed by the Court of Final Appeal. In light of the current positions of same sex marriage couple in Hong Kong, it is worthwhile for them to take a step forward in respect of succession planning:

  • Will – while same sex couples have inheritance rights under the IEO, the legal position might not fit the needs of everyone. It is advisable to have a Will in place when the testator could choose the executor and decide whom to inherit their estate and in what proportion.
  • Enduring Power of Attorney (“EPA”) – this powerful legal document allows an individual to appoint one or several attorneys to administer their assets in Hong Kong if the individual becomes mentally incapacitated
  • Advance Directive – this advance refusal of life sustaining treatment is not a legally binding document. It is merely an indication of one’s wishes to the hospital authority in case such treatment is being considered. Normally, the practice is for a patient’s next-of-kin to make medical decisions for patients who are unable to decide on their own. A same sex spouse might not be considered as a next-of-kin in case of a dispute between the spouse and the patient’s other family members.

While succession planning tools could be used to make arrangement for financial matters, it is not possible for a person to appoint a welfare decision making guardian in advance under the current regime. Unlike the Lasting Power of Attorney in Singapore and United Kingdom, which allows for a donor to appoint suitable candidate(s) to act in both personal welfare and financial matters, the Hong Kong Enduring Power of Attorney regime overs only assets and properties. It would benefit the society at large if this area of law could be updated to meet international standards.

Back to the case discussed, it would be an extensive exercise for the government to establish a system to recognise same sex partnership and update all relevant laws so that civil partners enjoy the same rights as married couples. It might take a very long time for that to actually happen, but a step forward, however small and however long it takes, is still a step forward. Hopefully we could see our society move slowly and gradually to one with true equality.

#RKS #RitaKuandSer #familymatters #divorce #familylaw #matrimoniallaw #familylawyer #matrimoniallawyers #HongKongfamilylawyers #HongKongmatrimoniallawyers #Will

RKS Editor

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