Taiwan’s legislature passes marriage equality bill

Taiwan’s Legislative Yuan passed “The Enforcement Act of Judicial Yuan Interpretation No. 748” allowing same-sex couples to register their marriages on 17 May. The name of the Act refers to Interpretation No. 748 made by Taiwan’s constitutional court in May 2017. Interpretation No. 748 held that not permitting same-sex marriage was unconstitutional on grounds that it violated the rights to equality before the law and freedom of marriage. The Enforcement Act of Judicial Yuan Interpretation No. 748 (the “Act”) implements Interpretation 748.

Article 2 of the Act provides that “two people of the same gender may establish a permanent, exclusive, and intimate union for the purpose of pursuing a common life”.  Article 4 of the Act details the mechanics of how to create such a union and states that it may be registered as a marriage at the local Household Registration Office.

While Article 20 of the Act permits second-parent adoptions by married same sex couples, joint adoptions of non-biologically related children are not permitted. It is likely that the constitutionality of not permitting married same sex couples to adopt will be challenged on grounds of the right to equality before the law.

Article 24(2) of the Act provides that in general any provision of another law other than the Civil Code applies to a same-sex marriage if it refers to ‘husband and wife’, ‘spouse’, or ‘marriage’ . As a result, the provisions of Taiwan’s choice of law rules regarding marriage apply to same-sex marriages. Under those rules, a transnational marriage (same-sex or otherwise) is valid only if it is valid under the laws of Taiwan and the laws of the foreign spouse’s country.

As a result, transnational same-sex marriages will be valid in Taiwan only if the foreign spouse comes from a jurisdiction that permits same-sex marriage. Conversely, such a marriage will not be recognized in Taiwan if the foreign spouse comes from one of the many countries such as Japan that currently do not permit same-sex marriage.

Since Hong Kong and Macau are treated as foreign countries for most purposes, it follows that same-sex marriages where one spouse is from Hong Kong or Macau probably will not be recognized. Due to China’s special status in Taiwanese law, it is currently uncertain whether same-sex marriages where one spouse is from the People’s Republic of China will be recognized.

The Act comes into force on 24 May 2019. Taiwan’s Chinese language media has reported that local Household Registration Offices are ready to start registering same-sex marriages on the same date.