More than 600 days after Taiwan’s landmark legalization of same-sex marriage, the government is finally addressing a longstanding issue: transnational marriages. Taiwanese still cannot legally marry a same-sex partner from a country where same-sex marriage is not recognized. There are only 29 countries that recognize such unions, making the provision still rather restrictive, and Taiwan is reportedly the only one that has such measures.
The issue has been repeatedly brought up by LGBTQ groups before and after same-sex marriage was legalized, and it continues to cast a shadow on LGBTQ and human rights in Asia. Countless couples have featured in articles about how one partner is struggling to stay in Taiwan. The Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) says there are more than 300 such couples.
The situation has been exacerbated by the COVID-19 pandemic due to travel restrictions, leading to long periods of separation. Some people are forced to remain in Taiwan as eternal students, and others resort to methods that are financially and psychologically draining, and in some cases, illegal.
One of the notable cases leading up to the 2017 constitutional interpretation that paved the way for the legalization of same-sex marriage involved Jacques Piroux, a French national who committed suicide in 2016 after being unable to make any medical decisions on behalf of his dying partner of 35 years, and had no rights to the property they shared. This is considered an influential case that ushered in the government’s eventual decision, but if Piroux was from a country that did not recognize same-sex marriage (France does), the current law would have meant absolutely nothing to him.
The Judicial Yuan on Friday last week finally approved draft revisions to the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), which would grant recognition to all same-sex marriages — except for those involving a partner from China (excluding Hong Kong and Macau).
“Nobody can put limits on love,” the Judicial Yuan said.
While Taiwanese-Chinese marriages are subject to different laws, such couples make up a sizeable portion of same-sex transnational couples, according to a BBC article published last year.
According to the TAPCPR, while the law does not technically prohibit same-sex marriage between Taiwanese and Chinese, such couples still cannot get married because part of the procedure requires them to register in China, which does not recognize same-sex marriage. There are tens of thousands of heterosexual Chinese spouses in Taiwan, but there is nothing same-sex couples can do. Is there a way to work around this? Nothing has been mentioned so far.
The requirement that the couple first register in the partner’s home country also applies to 22 other nations, but again this is not possible if the country — such as Thailand — does not recognize same-sex marriage. The Judicial Yuan said that couples could go to a third country to get married there first, and then come back and register, but not everyone can easily do that.
Another major problem that LGBTQ groups have brought up is that the law does not cover foreign residents in Taiwan who want to marry another foreigner: One party must be Taiwanese. There are two other versions of the draft amendment that do include foreign couples, but unfortunately the Judicial Yuan seems to be going with the one that does not.
While the draft is a step forward regarding human rights in Taiwan, many couples are still left out of the loop.
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