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On 5 September 2023, the Court of Final Appeal in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 ordered the government to develop an alternative framework for the legal recognition of same-sex couples and the protection of their basic social rights within two years i.e. by October 2025.
Author: Erica So, Associate Solicitor
While we await the publication of this framework, the LGBTQ+ community takes a wait-and-see approach towards further legal changes that may take place in Hong Kong. Nevertheless, it is useful to examine the city’s progress in these spheres, especially in recognizing same-sex partnerships. Currently, same-sex couples have been offered limited legal rights including access to spousal benefits, dependant visas, as well as housing and inheritance rights.
Entitlement to Spousal Benefits and Dependant Visas
In Leung Chun Kwong v Secretary for the Civil Service [2019] HKCFA 19, the Court of Final Appeal reaffirmed the principle of equality before the law, enshrined in the Basic Law and the Hong Kong Bill of Rights. The Court deemed any form of unlawful discrimination fundamentally unacceptable. The applicant, who had entered into a same-sex marriage in New Zealand, was a civil servant entitled to spousal benefits, including joint tax assessments. The Court found that these benefits recognised the economic reality of a family unit rather than protecting the institution of traditional heterosexual marriage in Hong Kong. Therefore, it was only reasonable that “any married person - regardless of whether in a heterosexual marriage or same-sex marriage - should be entitled to elect joint assessment or personal assessment with their spouse and claim allowances or deductions”, leading to revised regulations issued by the Inland Revenue Department in July 2019.
Following the landmark decision of Director of Immigration v QT [2018] HKCFA 28, dependants of same-sex civil partners maintaining valid employment visas (or that have become permanent residents) are now also entitled to dependant vias in Hong Kong. The appellant, whose partner had been offered employment in Hong Kong in 2011, was rejected to relocate to Hong Kong as a dependant based on immigration policy, which limited a “spouse” as one of the opposite sex in a monogamous marriage.
The appellant argued that such policy was discriminatory on the grounds of sexual orientation. The debate was whether differential treatment between same-sex and opposite-sex couples was justified. In its judgment, the Court of Final Appeal reiterated the limbs of the immigration policies, which aims at attracting foreign talents and skills by allowing them to bring their dependants to come and live with them. While the immigration control is designed to limit the number of dependants, whether or not such dependant was heterosexual or homosexual could not possibly be relevant. Since the appellant could produce their civil partnership certificate just as easily as a heterosexual couple producing the marriage certificate, the reliance on administrative convenience is simply of no rational connection to the rejection of the appellant’s application and was therefore not justified.
Access to Housing and Inheritance Rights
Moving forward to November 2024, the two judgments handed down by the Hong Kong Court of Final Appeal are now welcomed by campaigners as major victories for the LGBTQ+ community by recognising the housing and inheritance rights of same-sex couples.
Three judicial reviews were lodged, two of which challenged the Public Rental Housing Scheme (“PRHS”) and the House Ownership Scheme (“HOS”). These included Nick Infinger v The Hong Kong Housing Authority (FACV No. 2 of 2024) and Li Yik Ho (in substitution for Ng Hon Lam Edgar, deceased) v The Hong Kong Housing Authority (FACV No.3 of 2024).
The Court of Final Appeal held that the Housing Authority’s policies, which deemed same-sex spouses ineligible for PRHS because they were not considered “ordinary families”, and the refusal to allow same-sex spouses to cohabit in HOS flats or transfer titles without payment, were both unlawful and unconstitutional.
According to the Court, public housing aims to address the needs of low-income families. By extending such rights to same-sex couples, it would not impair the rights of opposite-sex couples, who do not have exclusive access to these units. The Court therefore questioned the justification for excluding same-sex couples from the PRH and HOS.
In Li Yik Ho (in substitution for Ng Hon Kam Edgar, deceased) v Secretary for Justice (FACV No. 4 of 2024), the top Court confirmed that equal inheritance rights should be upheld for same-sex couples lawfully married overseas under the Intestates’ Estates Ordinance (Cap.73) (“IEO”) and the Inheritance (Provision for Family and Dependents) Ordinance (Cap.481) (“I(PFFAD)O”).
Chief Justice Cheung explained that inheritance laws concern the distribution of a deceased person’s estate. The argument that only opposite sex-couples were legally responsible for financially supporting each other, thereby excluding surviving same-sex married couples as beneficiaries, was deemed flawed. Beneficiaries other than those owed any legal duty of maintenance, such as parents, siblings and uncles of the deceased are also provided for. That said, the purpose of the IEO and I(PFFAD)O is to distribute the deceased’s estates based on the closeness of the interpersonal relationships rather than being dictated by marriage.
Same-sex marriage remains as a gap for Hong Kong
In a city and region that still does not permit same-sex marriage, calls for marriage equality are growing louder. For many, it is seen as a key aspect of establishing Hong Kong as a leading global city. But then again, currently, the only Asian jurisdictions that nationally recognise same-sex couples are Taiwan, which did so in 2019, and Thailand, which just recently legalised same-sex marriage in late January 2025. Clearly many Asian countries have quite a few bridges yet to cross. As for Hong Kong, with the deadline for the government to establish an alternative framework looming, it remains to be seen how the LGBTQ+ community will progress and what rights and protections may be offered under the umbrella of the traditional institution of marriage.
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