Same-sex couples in Hong Kong will be able to enjoy some or all rights entitled to married heterosexual couples in the future as the city's top court ruled that the government must set up a legal framework to recognize these relationships.
The Court of Final Appeal ruled yesterday that the government violated its obligation to establish an alternative framework for legal recognition of same-sex partnerships.
The declaration is suspended for two years to allow the government to set up the mechanism.
The case was brought by activist Jimmy Sham Tsz-kit in 2018. Five judges of the top court allowed one of Sham's arguments - that there should be alternative means of legal recognition of same-sex relationships in Hong Kong - by a majority of 3-2.
Permanent judges Roberto Ribeiro, Joseph Fok and nonpermanent judge Patrick Keane said the legal recognition should be granted to meet same-sex partners' basic social requirements.
It also allows them "a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition."
They added that same-sex couples have to face difficulties in their daily lives and suffer from stress when they have to go through judicial review proceedings.
"If, just for instance, one of the partners were to be hospitalized, the other partner, having no recognized status as such, might be denied visiting rights or medical information or participation in decision-making regarding the other's treatment despite having been the sick person's devoted partner cohabiting together for years or even decades," they said.
"To take another example, without an appropriate legal framework same-sex partners whose assets have been mixed together over the years might face considerable uncertainty regarding the disposition of such property if their relationship were to come to an end."
But Chief Justice Andrew Cheung Kui-nung and permanent judge Johnson Lam Man-hon expressed opposing views, saying Sham's argument is equivalent to asking for same-sex marriage in another name.
By a majority, the court still allowed Sham's appeal and declared that the government is in violation of its obligation under the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships, such as registered civil partnerships or civil unions.
It suspended the declaration for two years for the government to comply with such an obligation.
Sham's other two arguments - a constitutional right to same-sex marriage and the government should recognize foreign same-sex marriage - were unanimously dismissed by the judges.
All five judges agreed that the constitutional freedom of marriage guaranteed and protected by the Basic Law "is confined to opposite-sex marriage and does not extend to same-sex marriage."
Sham, who has been remanded since February 2021 for his participation in the pro-democracy camp's 2020 primary election, married his husband in the United States in 2013. But his marriage is not recognized by the government, prompting him to file a judicial review in 2018.
The Court of First Instance and the Court of Appeal had ruled against him but the High Court last year allowed him to bring the case to the city's top court as it involves public interest.
The government yesterday did not comment on the judgment, saying the case has not been completely concluded since both Sham and the Department of Justice may lodge written submissions following the judgment.
Local pressure group Hong Kong Marriage Equality said the "historical judgment" is a "major victory" to the legal status of same-sex couples in the city.
"The judgment clearly states that Hong Kong laws must respect and protect same-sex couples It marks a big step forward for Hong Kong toward equal love and a more harmonious society."
But the group said the judgment still did not recognize same-sex marriage, urging the government to set up a mechanism to protect same-sex couples.
"Marriage gives families a unique legal status and guarantees partners and families, which cannot be matched by other means," it said.
Executive Councillor and senior counsel Ronny Tong Ka-wah said the judgment means the government should provide similar services to same-sex couples as heterosexual couples.
The government may need to set up a special mechanism to achieve that, Tong said.
"Whether a lot of same-sex couples will travel to overseas countries to get married and return to Hong Kong to apply for such services, and whether the government is capable of handling all of their applications will be practical questions faced by Hong Kong," Tong said.
wallis.wang@singtaonewscorp.com
