1. Rights and benefits enjoyed by same-sex couples married overseas in Hong Kong
Government Departments (Immigration, Housing and Taxation)
The court has recently advanced much of the welfare rights of same-sex couples married overseas. The court has recognised that same-sex or civil partners should be granted spousal/dependent visas by immigration authorities and be entitled to apply for public rental housing, and financial/spousal benefits relating to employment and taxation assessment (including tax allowances or deductions in respect of the same-sex spouse). Same-sex marriage would be regarded as valid for the purposes of the Inland Revenue Ordinance (Cap. 112) .
The court has also ruled that definitions of “valid marriage” and “husband and wife” in the provisions of ordinance relating to probate inheritance and intestates’ estate, which exclude same-sex couples legally married in foreign countries, are unlawful and unconstitutional, so same-sex spouse can claim as “surviving spouse” under the relevant ordinance.
There is now also no distinction between same-sex and opposite-sex spouses under the Coroners Ordinance (Cap. 504), relating to arrangements of the deceased to be conducted by their spouses, after-death service provided by government departments/Coroner’s courts and applying for a death certificate from the Immigration Department.
Divorce, Maintenance and Parental Rights
Same-sex partners can also enjoy equal parental rights over children, as guardianship and joint custody could be granted by court to non-biological, same-sex parent.
Same sex couples could not obtain a divorce in Hong Kong, and while those heterosexual couples lawfully married and divorced in foreign jurisdictions could claim ancillary relief in Hong Kong, it is still uncertain whether the same would apply to same-sex couple as same-sex marriage is still not recognised in the Hong Kong. The definition of cohabitation relationship has been defined to include those same-sex couple living together in an intimate relationship in the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189), which provides protection of persons from violence in domestic and cohabitation relationship.
Same-sex marriage would be regarded as a valid marriage for certain purposes of an ordinance, such as immigration visas, inheritance, public rental housing, tax assessment and parental rights. The recognising of benefits and rights for same-sex couple in these area in court was not on promoting or recognising same-sex marriage as the court has held that the denial of the right for same-sex couples to marry did not constitute a violation of constitutional rights. Thus, a homosexual couple still has no right to be married in Hong Kong. The court has recognised the protection of the heterosexual and monogamous institution of marriage as a legitimate aim, but any differential treatment between those in a heterosexual or same-sex marriage in an ordinance or policy has to be justified and rationally connected to the legitimate aim.