Sat, Feb 01, 2020 - Page 4 News List

FEATURE: Same-sex marriage depends on nationality

By Ann Maxon  /  Staff reporter

While the landmark Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748 (司法院釋字第748號解釋施行法) — passed by the Legislative Yuan in May last year — made Taiwan the first Asian country to legalize same-sex marriage, a loophole in the act makes it the only country where a citizen’s right to marry a same-sex partner depends on their nationality.

“Of the 27 countries that have passed same-sex marriage, Taiwan is the only one that requires both parties to come from a country where same-sex marriage is legal,” Taiwan Alliance to Promote Civil Partnership Rights board member Victoria Hsu (許秀雯) said.

While the law was drafted to comply with the Council of Grand Justices’ Interpretation No. 748, which stipulates that the right to same-sex marriage is guaranteed by the Constitution, the loophole means that Taiwan’s marriage laws remain “unconstitutional,” she said.

Kris from Taichung and her partner, Yan, from Hong Kong are among the hundreds of transnational same-sex couples who cannot marry due to the loophole.

Since the two began a serious relationship last year, they have been flying to visit each other at least once every couple of months, despite the airfare being a constant financial burden, Kris said.

“Things like getting off work together and eating together ... which are completely normal to most people, are like a dream for many transnational same-sex couples like us,” she said.

A major legal obstacle to transnational same-sex marriage is the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), which stipulates that whether a marriage can be established depends on the laws in the countries where the two people are from, attorney Daniel Chen (陳明彥) said.

The situation is further complicated by immigration regulations that require foreign spouses from 21 countries to be married abroad and pass an interview at a nearby Taiwan representative office before their marriage can be registered in Taiwan, he said.

The rule creates “yet another obstacle” for same-sex couples because the 21 countries, including Thailand and Vietnam, have not legalized same-sex marriage, he said.

Although the law does not apply to cross-strait marriages, a Chinese spouse must be married in China and pass an interview at an aiport in Taiwan to obtain marriage-based residency in Taiwan, he said.

“This does not work for same-sex couples at all, because they are prohibited from registering to marry in China,” he said.

The alliance has since October last year been working with several transnational same-sex couples to file administrative appeals against the government, he said.

If successful, the court cases would establish a precedent that could be applied to other transnational same-sex couples, or even push the legislature or Judicial Yuan to amend the law, he said.

If they lose, the alliance would consider seeking a constitutional interpretation to legalize all transnational same-sex marriages, he said.

Marriage Equality Coalition Taiwan deputy convener Teng Chu-yuan (鄧筑媛) said that legislators were well aware of the loophole when reviewing the same-sex marriage bill last year.

“When we were lobbying for same-sex marriage, problems like transnational marriage and joint adoption had already been noticed, but they were not dealt with because anti-LGBT camps kept stoking fear among the public by spreading false rumors,” she said.

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