In Taiwan, same-sex marriage has been recognized since 24 May 2019 pursuant to the Act for Implementation of Judicial Yuan Interpretation No. 748. However, foreign nationals may only enter into same-sex marriage in Taiwan if their national law permits the same, as mandated by Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (the “Act”). This means that a same-sex couple from Taiwan-Bangladesh or from US-Egypt may not marry in Taiwan, as Bangladesh and Egypt laws do not recognize same-sex marriages.
The situation advanced in January 2021 when the Taiwan judiciary proposed a bill to amend Article 46 of the Act, which, when passed, will enable a Taiwan/foreign-national same-sex couple to marry in Taiwan regardless of the status of foreign law (the Taiwan judiciary is authorised to propose laws to the legislature). In its official press release, the judiciary expressed pride that Taiwan is the first country in Asia to recognize same-sex marriage, but criticised the exclusion of foreign nationals. The focus of the amendment is to afford Taiwan nationals the right to freely enter into same-sex marriages regardless of the nationality of their partners, but did not go all the way to recognize same-sex marriages in Taiwan between two foreign nationals. Interestingly, the title of the press release “nobody can define the limits of love” is a reference to the lyrics of a local pop song.
While the legislative amendment is in progress, the Taipei High Administrative Court handed down two relevant decisions on point. In Qi Jia Wei v Household Registration Office, Daan District, Taipei City, Taipei High Administrative Court Judgment (108) Su Tzu No. 1805 (4 March 2021), a case concerning a Taiwan-Malaysia couple, it was held that Article 46 was not applicable as it violated the constitutionally safeguarded rights of equal protection and the right to marry. The court cited Article 8 of the Act which provides that foreign laws are inapplicable if their effect would violate public order or good morals. Where a Taiwan national chooses to marry a same-sex partner from a foreign jurisdiction which does not recognize same-sex marriage, the marriage should still be registrable in Taiwan. This is because Taiwan nationals should be entitled to enter into same-sex marriages whether their partner is a Taiwan or foreign national. While the discriminatory treatment appears to be one based on nationality, the court classified it as sexual orientation discrimination and held that it should be eliminated.
In Ding Ze Yan v Household Registration Office, Zhongzheng District, Taipei City, Taipei High Administrative Court Judgment (109) Su Tzu No. 14 (6 May 2021), a case concerning a Taiwan-Macau couple, the court approached the issue from another angle. It was held that the primary issue on the facts was conflict of laws and not whether Macau laws recognised same-sex marriage. As Taiwan was the habitual residence of the Macau person in that case, Article 6 of the Act mandated that Taiwan law applied. As such, the marriage registration of the couple should have been approved.
As Taiwan approaches full parity for same-sex marriage (at least where one of the parties is a Taiwan national), there are also developments in Japan and Hong Kong. Hopefully, more Asian jurisdictions will be inspired to follow suit to ensure the recognition and protection of same-sex couples.