Article Taiwan: Same-Sex Marriage Law Enters into Effect

(June 18, 2019) On May 17, 2019, Taiwan’s Legislative Yuan approved the Enforcement Act of Judicial Yuan Interpretation No. 748, a special law legalizing same-sex marriage in Taiwan. Taking effect on May 24, 2019, the Act is the first law passed in Asia to allow same-sex marriage. (Sifayuan Shizi Di 748 Hao Jieshi Shixing Fa (approved by the Legislative Yuan on May 17, 2019, promulgated by the President on May 22, 2019, effective May 24, 2019), Laws and Regulations Database of the Republic of China (in Chinese); Erika C. Collins & Jordan Glassberg, In Historic First for Asia, Taiwan Legalizes Same-Sex Marriage, LEXOLOGY (May 28, 2019).)

According to article 2 of the Act, two people of the same sex may, to manage a life together, conclude a permanent union that is intimate and exclusive. (Enforcement Act of Judicial Yuan Interpretation No. 748, art. 2.)

Article 4 of the Act provides that such a relationship concluded under article 2 must be effected in writing, which requires the signatures of at least two witnesses, and by registering the marriage with the household administration authority. (Id. art. 4.)

The Act specifies which provisions of the Taiwanese Civil Code governing marriage are applicable to the relationship concluded under article 2, including those on annulment of marriages (id. art. 10), matrimonial property regimes (id. art. 15), and inheritance (id. art. 23). The Civil Code provisions on adoption, however, are applicable only when one party of the relationship is adopting the other party’s biological children (id. art. 20), meaning same-sex couples are not allowed to adopt other children.

The Act was passed after Taiwan’s Constitutional Court announced its ruling in Judicial Yuan Interpretation No. 748 on May 24, 2017, that the prohibition of same-sex marriage in the current Civil Code violates the Constitution. The Court gave the authorities two years from the issuance of the Interpretation to amend existing legislation or enact relevant laws in accordance with the ruling. (Laney Zhang, Taiwan: Constitutional Court Rules Same-Sex Marriage Prohibition Unconstitutional, GLOBAL LEGAL MONITOR (June 5, 2017).)

Taiwan is considered the most progressive place in Asia with regard to gay rights. Mainland China decriminalized homosexuality in 1997 but does not allow same-sex marriage. (Collins & Glassberg, supra.) Since September 19, 2018, same-sex partners who have entered into same-sex marriages or civil unions outside Hong Kong are eligible to apply for a dependent visa to enter Hong Kong, but same-sex couples in Hong Kong still do not have the right to marry under Hong Kong law. (Laney Zhang, Hong Kong: Government Revises Immigration Policy to Grant Same-Sex Partners Dependent Visa, GLOBAL LEGAL MONITOR (Nov. 26, 2018); Laney Zhang, Hong Kong: Court of Final Appeal Grants Same-Sex Partners the Right to a Dependent Visa, GLOBAL LEGAL MONITOR (July 30, 2018).)

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