Same-Sex Marriage becoming World Trend
As from 26 June 2015, the United States became the twenty-first and largest country in the world to legalize same-sex marriage after The Supreme Court’s ruling in Obergefell v Hodges. The decision reaffirmed the right to marry for both heterosexual and homosexual couples to ensure their equal protection before the law. Observing this transformation as an international city, Hong Kong is likely to encounter two issues: (1) whether Hong Kong law currently recognizes same-sex marriage lawfully contracted in another jurisdiction; and (2) whether Hong Kong will eventually legalize it. This article will explore both of these possibilities.

Marriage under Hong Kong Law
Although Hong Kong generally experiences a growing acceptance of LGBTs,[1] s.40 Marriage Ordinance Cap.181 (“MO”) still confines marriage as “the voluntary union of one man and one woman to the exclusion of others”. Homosexual marriages are thus invalid at law. This has often been criticized as unequal treatment between homosexual and heterosexual couples, since only a legally valid marriage confers extended benefits and protections onto the married couple. Tax allowance is one example. Under s.12(3) Inland Revenue Ordinance Cap.112 (“IRO”), a married taxpayer is entitled to deductions from assessable income in any year of assessment during which he or she was married. Additionally, the Matrimonial Causes Ordinance Cap.179 (“MCO”) provides divorce mechanisms to assist and protect parties during separation. However, since homosexual couples lack capacity to legally marry in Hong Kong, they do not qualify for these benefits and protections.

Foreign Same-Sex Marriages under Hong Kong Law
With more countries legalizing same-sex marriage, a new question arises as to whether this creates leeway for their indirect recognition under Hong Kong law. For instance, marriages which qualify for tax allowance under IRO include those “entered into outside Hong Kong according to the law of the place where it was entered into”. On a literal interpretation, that would include same-sex marriages legally formed outside Hong Kong in a foreign jurisdiction. Accordingly, homosexual couples who married in a foreign place but now live in Hong Kong can technically claim tax allowance. But such a narrow interpretation is not always tenable. Like IRO, MCO also applies to foreign marriages, but it is specified that they must be “recognized by such (foreign) law as involving the voluntary union for life of one man and one woman to the exclusion of others”. Ultimately, to contextualize Hong Kong’s understanding of marriage, the concept of “one man and one woman” remains as an overarching prerequisite for both domestic and foreign marriages to be recognized under Hong Kong law.

There is yet another angle from which the legal status of foreign same-sex marriages can be examined. The Matrimonial Proceedings and Property Ordinance Cap.192 (“MPPO”) provides an alternative recourse for parties to claim ancillary relief separately from their divorce proceedings. This only requires that a decree of divorce has been granted by a competent Court within or outside Hong Kong. A hypothetical question therefore arises as to whether homosexual, and initially married, couples could claim ancillary relief over their Hong Kong-based assets, given that a foreign Court has recognized their divorce. The likely answer is no. Section 29AB MPPO clarifies that parties can only apply for relief in this way if “a marriage has been dissolved…by judicial proceedings outside Hong Kong and that the divorce is recognized as valid by the law of Hong Kong”. A valid divorce under Hong Kong law is “one which relates to a customary marriage”,or a “Christian marriage” involving only one man and one woman.

Prospect of Same-Sex Marriage Legalization in Hong Kong
Given that the LGBT community is expanding and receiving increasing support from society, same-sex marriage legalization is foreseeable. But before that, Hong Kong still faces a number of outstanding deliberations on LGBT rights including anti-discrimination in private workplaces and access to surrogacy and child adoption. The Centre for Comparative and Public Law’s 2014 statistics also indicated a lack of consensus amongst the Hong Kong public on same-sex marriage legalization, even though a great majority agreed that homosexual couples should enjoy some of the rights of heterosexual couples. Of course, this does not insinuate that the majority shoulddictate minority rights legislation. In recent times, we can anticipate that the Hong Kong judiciary will assume a more active role in protecting LGBT rights. Recalling W v Registrar of Marriage, the Court upheld a transsexual woman’s right to marry, thereafter expanding the term “woman” in the definition of marriage to embrace transsexual females.

Conclusion
The traditional institution of marriage has undergone significant changes over the past century and is currently still evolving. As Hong Kong houses racially diverse communities, it is worth contemplating the extent to which foreign legalization of same-sex marriage will affect its more conservative laws. On the other hand, it appears that existing Hong Kong matrimonial legislation is quite bulletproof to implying a legal recognition of foreign same-sex marriages. It also seems to be the case that until Hong Kong arrives at a clearer stance on a multiplicity of LGBT rights issues, same-sex marriage legalization remains a distant objective.

[1]     Gays, lesbians, bisexuals and transsexuals

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IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.