Couple wins same-sex marriage lawsuit – 台北時報
A woman and her Hong Kong wife won their marriage lawsuit on Thursday as a court in Taipei ordered their household registration office to reinstate their marriage registration.
In its ruling, the High Administrative Court in Taipei revoked the decision to annul the marriage registration of the Taiwanese national, surnamed Liu (劉), and her partner, surnamed Tse (謝), by the Household Registration Office of Taipei’s Xinyi District (信義) in June 2020.
In effect, the ruling allows the couple’s marriage registration, initially approved by the same office in August 2019, to be reinstated, barring an appeal lodged by the office within 20 days of receiving the verdict document.
Photo courtesy of the Taiwan Alliance to Promote Civil Partnership Rights
At a news conference outside the court building, Liu said it was “ridiculous” that the authorities determined whether a Taiwanese national could marry based on their partner’s nationality.
According to Liu, the office initially approved the couple’s marriage registration in August 2019, shortly after they got married in the US, because it decided that Tse, a British National Overseas (BNO) passport holder, should receive the same treatment as a British national.
However, after Tse, 35, applied for a dependent visa from the National Immigration Agency (NIA) in January 2020, the household registration office, notified by the NIA that a BNO passport holder should be regarded as a Hong Kong resident, invalidated the couple’s registration.
Subsequently, Tse’s application for the dependent visa was rejected by the NIA, and she is currently staying in Taipei on a student visa, which she had obtained after quitting her job in Hong Kong and applying to study in Taiwan.
The couple initially appealed the household registration office’s invalidation decision, but after this was rejected, took their case to court in 2020, with the pro bono support of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR).
The office’s decision was based on a directive issued by the Ministry of the Interior, which cited Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法) as stipulating that the formation of a marriage is governed by the national law of each party’s home country.
The ministry’s directive has prevented more than 500 cross-national same-sex couples from officially tying the knot in Taiwan, the TAPCPR said, citing internal surveys.
TAPCPR lawyer Victoria Hsu (許秀雯) told the news conference that Thursday’s ruling marked the fifth time the court had proved the ministry’s rules to be “wrong” since the TAPCPR began helping cross-national same-sex couples sue the government to register their marriages.
Since March last year, the High Administrative Court has ruled in favor of four cross-national same-sex couples involving partners from Malaysia, Macau, Singapore and Japan in their marriage lawsuits.
In some of the cases, the court adopted Article 8 of the same legislation, which states the law of a foreign country may not be applied if the result of such application leads to “a violation of the public order or boni mores of the Republic of China,” as a legal basis.
Despite that, the ministry, which governs matrimonial affairs, has said it is legally bound to continue rejecting the registration of marriages filed by couples such as Liu and Tse in accordance with Article 46.
Liu, a 35-year-old office employee, said that although winning her lawsuit was “good news,” she and Tse felt “happy with a heavy heart,” as the ruling could not be applied to other same-sex couples facing similar obstacles.
A Malaysian national surnamed Tan (陳), who spoke on behalf of a community of more than 100 cross-national same-sex couples in Taiwan, said the ministry’s continued disregard of their rights was an act of discrimination.
The ministry had made similar comments whenever a household registration office lost a marriage lawsuit filed by a cross-national gay couple to evade its responsibility, claiming it was unable to change its rules until a draft amendment proposed by the Judicial Yuan is approved by the legislature, Tan said.
The proposed amendment, unveiled by the Judicial Yuan in January last year, is still awaiting the Cabinet’s approval before it can be voted on by lawmakers.
TAPCPR secretary-general Chien Chih-chieh (簡至潔) said that former minister of the interior Hsu Kuo-yung (徐國勇), who resigned earlier this month over personal health reasons, should be blamed for the ministry’s “negligence” which has compromised the rights of cross-national same-sex couples in which one partner is from a country or region where gay marriage is not legal.
She called on the next interior minister, who is yet to be appointed, to “make corrections” so that those couples can freely register their marriages in Taiwan.
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