Only heterosexual married couples have the legal responsibility to financially support one other, the government has argued in a top court case surrounding equal inheritance rights for same-sex married couples.
Court of Final Appeal. Photo: GovHK.
The government’s challenge in the Court of Final Appeal came after the High Court and the Court of Appeal earlier ruled in favour of giving same-sex couples who married overseas the same inheritance rights as heterosexual married couples.
The case was lodged by in 2019 by Edgar Ng, who sought a judicial review after learning his husband Henry Li could not inherit Ng’s government-subsidised flat without a will. Ng died in December 2020 and Li has since taken over the case.
Same-sex marriage is not legal in Hong Kong, and overseas same-sex marriages are not recognised, though the Court of Final Appeal ruled last September that a legal framework to recognise same-sex unions must be established.
Representing the government, Monica Carss-Frisk told the Court of Final Appeal on Tuesday that same-sex couples who married overseas were not regarded as married in the eyes of Hong Kong law.
Henry Li (left) and Edgar Ng. File photo: Henry Li, YouTube video screenshot.
Therefore, opposite-sex couples and same-sex couples differed in that only heterosexual couples had the legal responsibility to support one other financially, she said.
Under Hong Kong’s inheritance laws, only those defined as being in a “valid marriage” can inherit the property of their partner if they pass away without a will. Same-sex couples are excluded.
Activists have long criticised Hong Kong’s limited rights and protection for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
After last September’s landmark ruling regarding the need to provide means for the legal recognition of same-sex relationships, the government was given two years to establish such a mechanism.
A rainbow flag. File photo: Robert Midgley/No 10 Downing Street.
On Tuesday, Carss-Frisk said it was not appropriate for the government to change the definition of marriage in the context of inheritance laws until that framework was decided on. “Piecemeal” amendments would be “highly undesirable” as inconsistencies could cause confusion, she said.
Timothy Otty, the lawyer representing Li, said the government had not considered that same-sex partners, like heterosexual partners, have intimate, loving, and committed relationships and should be treated equally.
In response to Carss-Frisk saying that same-sex couples could write a will at any time, which would be the ideal way of handling inheritance matters, Otty said most people in Hong Kong died without leaving behind a will. Wills can also be seen as invalid for a host of reasons, so the government’s reasoning was a “red herring,” Otty argued.
The Court of Final Appeal’s five-judge panel will hand down a verdict at a later date.
Last week, the top court also heard a case relating to same-sex couples’ rights. The government challenged a lower court’s decision to offer equal housing rights for same-sex couples as heterosexual couples, arguing that public housing was for “traditional families.”
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