A ray of hope for transnational same-sex marriage rights in Taiwan

This is a translation of the original Mandarin Chinese article by Kai-yu Chang and Christine Chen, which can be found here. Translation by Paul Cox.

How Things Stand Now in Taiwan

In 2017, Taiwan’s Constitutional Court held unconstitutional the provisions of Taiwan’s Civil Code that do not allow two persons of the same sex to create a union of exclusive nature for the purpose of living a common life. The Court gave the legislature two years to amend the law or issue new legislation to protect equal rights to freedom of marriage. In 2019, Taiwan became the first country in Asia to legalize same-sex marriage with the promulgation of the Act for Implementation of J.Y. Interpretation No. 748.

Persisting Inequality Under the Current System

Although same-sex marriage has been legalized in Taiwan, in practice, this legal protection is not yet available to all couples: some transnational same-sex couples remain unable to register marriages. The reason is that a majority of the local household registration agencies responsible for registering marriages have interpreted Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (hereinafter, the “Choice of Law Act”) to mean that if a marriage is not allowed under the national law of one of the parties, the marriage cannot be formed.[1] The result of this interpretation is that if a Taiwanese national wishes to marry a same-sex partner who is a foreign national, and that foreign partner is from a country whose law does not recognize same-sex marriage, the household registration office will refuse to legally register their marriage in Taiwan.

Some may take the view that this interpretation by the household registration agencies does not violate the right of equality because Article 46 applies both to same-sex and opposite-sex marriages. Nevertheless, the application of the article has resulted in de facto inequality, causing Taiwanese to suffer discriminatory treatment, based on their sexual orientation, in their ability to exercise freedom of marriage. Given that most of the world’s countries recognize opposite-sex marriage but not same-sex marriage, a Taiwanese national who is heterosexual does not have to worry about what the law of their partner’s country dictates. Indeed, the household registration office is not going to make any special examination of whether that country’s law recognizes heterosexual marriage. But a gay Taiwanese national does not enjoy protection of their marriage rights unless the law of their partner’s country also recognizes same-sex marriage. This is a de facto inequality in the current system and arguably is an infringement of the constitutionally protected rights of equality and freedom of marriage..

Redressing the Inequality

Equality advocacy groups have proposed various methods for resolving the predicament described above. One possibility would be to amend the Choice of Law Act to exclude the application of Article 46 in same-sex marriages, so that all transnational same-sex couples would be entitled to marry lawfully in Taiwan, without needing to worry about whether the other country recognizes same-sex marriage.

Short of amending the law, it has also been proposed that Taiwan’s executive branch could issue an interpretive order stating that Article 46 of the Choice of Law Act does not apply to same-sex marriages; or, stating that, based on an exclusion provision in Article 8 of the same Act (discussed in more detail further below), the laws of countries that do not recognize same-sex marriage will no longer be applied.

Finally, it has been suggested that, after all other possible avenues of remedy have been exhausted, Taiwan’s constitutional court could be petitioned to declare the current marriage provisions of the Choice of Law Act unconstitutional, thus protecting the rights of transnational same-sex couples to marry.

Actual Case

It was the case of Mr. Chi Chia-wei, whose attempt at registering his marriage with his same-sex partner was rejected in 2013, that ultimately led to the Constitutional Court interpretation holding the prohibition of same-sex marriage unconstitutional. But when, after the legalization of same-sex marriage, Mr. Chi and his Malaysian partner went to the household registration agency to register their marriage, they were rejected once again, this time on the grounds that the law of Malaysia does not recognize same-sex marriage.

Chi Chia-wei and his partner filed an administrative appeal with Taiwan’s executive branch, but the appeal was unsuccessful. They then brought litigation in administrative court, asking the court to void the outcome of the administrative appeal. They prevailed in the litigation, and the High Administrative Court issued Administrative Judgment No. 108-Su-1805 ordering the household registration authorities to register Mr. Chi and his partner’s same-sex union.

Comments on the Taiwan High Administrative Court Judgment

The Taiwan High Administrative Court Judgment cited above holds that the administrative agency contravened Taiwan’s public order and boni mores in its refusal to register Chi Chia-wei and his Malaysian partner’s marriage on the grounds that Malaysian law does not recognize same-sex marriage. The Court holds the agency’s rejection decision unlawful under Article 8 of the Choice of Law Act, which provides, “Where this Act provides that the law of a foreign State is applicable, if the result of such application leads to a violation of the public order or boni mores of the Republic of China (Taiwan), that law of the foreign State is not applied.”

The High Administrative Court judgment further explains that in J.Y. Interpretation No. 748, the Constitutional Court had already expressly held that same-sex marriage is a constitutionally protected basic right of the public, and Taiwan law already contains express provisions recognizing the right to same-sex marriage. The court thus concludes that it is already an established part of Taiwan’s legal order that two partners of the same sex may lawfully marry, regardless of whether the law of another country recognizes same-sex marriage.

The Court therefore held that the agency’s refusal to register Chi Chia-wei and his partner’s marriage based on Article 46 of the Choice of Law Act contravenes the public order and boni mores of Taiwan, and so, under Article 8 of the Choice of Law Act, the law of the foreign country should not be applied. Based on this reasoning, the Court voided the agency’s decision, and issued its judgment favoring the plaintiffs on this issue.

Impact of the Judgment and Progress on Legislative Amendments

Although the Taiwan High Administrative Court held in the judgment cited above that the result of applying Article 46 of the Choice of Law Act violates the public order and boni mores of Taiwan and adjudicated in favor of Chi Chia-wei, court judgments in Taiwan’s system are binding only on the case at hand. So, this judgment does not bind administrative agencies across the board in cases with analogous circumstances. Other transnational same-sex couples are unable to rely on this judgment to successfully register their marriages. Indeed, other cases addressing the issue of transnational same-sex marriage registration are also currently making their way through the courts.

Meanwhile, regarding progress on legislative amendments, the Civil Department of Taiwan’s Judicial Branch on 22 January 2021 announced a draft amendment adding the following proviso to Article 46 of the Choice of Law Act: “However, if the application of the national law of one party would result in inability to form the marriage, and the other party is a national of the Republic of China (Taiwan), the law of the Republic of China will prevail.” If successfully passed into law, the addition of this proviso to the existing Article 46 would mean that if the national law of one of two same-sex partners (one of whom is a Taiwanese national) does not recognize same-sex marriage, only the law of Taiwan needs to be followed.

This draft amendment should be applauded as a positive move in the direction of adopting an express legislative provision to comprehensively protect the rights of same-sex partners to freely form permanent exclusive unions of their own volition. It strongly deserves our continued attention and efforts to nudge its successful passage and enforcement.

Reflections to Date

At the same time as many are advocating for the use of legislative amendment to resolve the current predicament, perhaps we should also take a fresh look at the interpretation of Article 46 of the Choice of Law Act.

Examining the record of the Legislature’s article-by-article discussion of the Choice of Law Act draft bill in 1953, the legislators’ interpretation of Article 46 at the time was: “The requirements for marriage include both substantive requirements and formal requirements, which in principle can follow the national laws of the parties, following the national law of the man with respect to the man and the national law of the woman with respect to the woman” (spoken by Legislator Chen Guyuan). In other words, to determine whether two people from different countries are eligible to marry, it must be examined whether each person individually meets the required conditions for marriage under the law of their own country of nationality. For example, if Party A, a Taiwan national, and party B, a foreign national, wish to marry in Taiwan, and Party A is marriage-eligible under Taiwanese law, and Party B likewise is marriage-eligible under the law of Party B’s country, then Parties A and B may legally register marriage in Taiwan.

So, based on the original interpretation and reasons of the legislators, if Chi Chia-wei, under Taiwanese law, has reached marriageable age and has no other legal impediment to marriage such as already being married, and his partner, under Malaysian law, likewise has reached marriageable age and has no impediment to marriage, then Chi Chia-wei and his partner may legally register marriage under the law of Taiwan. This interpretation leads to an outcome opposite to that of the interpretation currently held by Taiwan’s administrative agencies responsible for marriage registration.

Another issue that merits consideration is: why must the eligibility of Taiwanese nationals to legally marry in Taiwan be left up to the laws of other countries to decide? Our country’s power to enforce our own laws is in fact an expression of our national sovereignty. Premising the effectiveness and enforceability of Taiwan’s laws on the provisions of laws of other countries diminishes our national sovereignty and is a self-imposed handicap. This is not to mention that the provisions of law at issue in this case involve restriction of people’s rights and are inextricably related to the protection of basic constitutional rights. Having to look to the laws of other countries to determine the effective scope of the fundamental rights vested in the public by our own country’s constitution undermines the very spirit of our country’s constitutional protection of people’s fundamental rights. We call on the government to immediately alter the current practice regarding the registration of same-sex transnational marriages, therefore safeguarding the constitutionally protected basic rights of Taiwanese citizens.

For more information on marriage equality in Taiwan, please contact Christine Chen at cchen@winklerpartners.com.

[1] Article 46 (translation): “The formation of a marriage is governed by the national law of each party. However, a marriage is also effective if it satisfies the formal requisites prescribed either by the national law of one of the parties or by the law of the place of ceremony.”

Written May 6, 2021 By Christine Chen.