The decisions from the English Supreme Court in June and Hong Kong’s Court of Final Appeal in July have been hailed as landmark cases due to their consideration of discrimination and human rights issues in terms of an individual’s relationship status.
In the English case, a heterosexual couple won their appeal against a Court of Appeal decision, after five judges of the Supreme Court unanimously ruled that it was unfair to only allow same-sex couples to enter into a civil partnership. In Hong Kong, the Court of Final Appeal ruled in favor of a British woman who applied for a visa to reside in the city with her same-sex partner. On 18 September, the government announced that it would now recognize overseas same-sex partnerships in spousal visa applications.
The ability in England for same-sex couples to enter into a civil partnership, enabling them to have similar rights and responsibilities enjoyed by married couples, came into being with the enactment of the Civil Partnership Act in 2004. This included a formal process for dissolving partnerships, similar to the divorce process, and rights in respect of property, inheritance and parental responsibilities.
Once the enactment of the Marriage (Same Sex Couples) Act 2013 made same-sex marriage lawful in England, same-sex couples had a choice of whether to enter into a marriage or a civil partnership.
Two campaigners argued before the courts that this was unfair treatment and that the choice should be available to heterosexual couples too.
Cohabiting couples have limited rights. When their relationship breaks down, the couple must fall back on complicated contract or land law and there are no rights for a spouse to claim financial provision following a split.
The two campaigners were conscientious objectors to marriage but there was no doubt as to their commitment to each other, and they had two children. They wanted to enter into a civil partnership and argued that there was clear inequality of treatment for heterosexual couples.
The Supreme Court found that as soon as the same-sex marriage law came into force there existed a new form of discrimination which was never justified and should have been rectified immediately, either by abolishing civil partnerships or instantaneously extending them to different sex couples.
Hong Kong is a long way from allowing either civil partnerships or same-sex marriage, although civil partnerships are recognized in many parts of the world and have been the stepping stone to same-sex marriage in others.
The recent ruling in favor of a same-sex couple and the consequent policy switch may have improved the situation.
QT and SS, as they were identified in court proceedings, entered into a same-sex civil partnership in England. SS was offered employment in Hong Kong and QT made an application for a dependant’s visa.
Under the immigration policy, persons who are eligible to apply as dependants are the sponsor’s spouse or children. The Director of Immigration’s definition of spouse was someone of the opposite sex in a monogamous marriage, adopting marital status as defined under Hong Kong matrimonial law. Therefore, QT was refused a dependant’s visa.
The Court of Appeal allowed QT’s appeal and quashed the Director’s decision. This was hailed as a great step towards a more liberal approach to same-sex relationships and their status. The court found that accepting only opposite-sex spouses as eligible constituted indirect discrimination.
Although the Court of Final Appeal agreed with the decision of the Court of Appeal, it did not agree to follow its rationale. The Court of Final Appeal found that the question of discrimination should be “Why should the visa benefit be reserved uniquely for married couples? Is there a fair and rational reason for drawing that distinction?”
Differences in treatment to the prejudices of a particular group require justification and cannot rest on a categorical assertion.
This case is a significant one for same-sex couples who wish to live and work in Hong Kong. The fact that the couple could not marry in Hong Kong and that visas were only available to spouses put them at an insurmountable disadvantage.
In this case, clearly the policy was not rationally connected with the legitimate objective of strict immigration control. On 18 September, the government announced a new policy after its review of the dependant visa process, which was prompted by this case.
Now, the Director of Immigration will consider an application from a person who has entered into “a same-sex civil partnership, same-sex civil union, same-sex marriage, or opposite-sex civil partnership or opposite-sex civil union outside of Hong Kong” for a dependent visa, if the person meets the normal immigration requirements.
There have already been 20 successful same-sex visa applications as of the end of August, after the Immigration Department made an interim arrangement in April to accept applications.
At this stage, however, there has not been any protection or rights granted to these same-sex couples. Those who would like to gain a certain level of protection will have to enter into a cohabitation agreement which can regulate their affairs, for example, the logistics of property holding and the consequences of a relationship breakdown.
It is advisable for unmarried couples, same sex or heterosexual, to clarify who owns what and provide maintenance for the financially weaker party if they choose not to, or cannot marry in Hong Kong.
It would also be advisable to prepare a will as a cohabitee does not have an automatic right to inherit under the intestacy rules.
Rita Ku, Partner, Withersworldwide
Philippa Hewitt, Professional Support Lawyer, Withersworldwide
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