The Taipei High Administrative Court on Thursday revoked a decision by a household registration office not to permit a same-sex marriage involving a foreign national from a country in which such marriages are illegal, and proposed alternate legal grounds on which the marriage could be performed.
The Daan District Household Registration Office in Taipei refused to permit the marriage of Taiwanese gay rights activist Chi Chia-wei (祁家威) and his Malaysian partner when they attempted to do so on May 24, 2019.
The office based its decision on Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法), which states that “the formation of a marriage is governed by the national law of each party.”
In practice, this has meant that same-sex couples involving a partner from a country in which gay marriage is illegal — such as Malaysia — are not allowed to marry in Taiwan or have a marriage conducted in a third country legally recognized.
However, the administrative court revoked the office’s decision and ordered it to use a superior clause in the same law to register such marriages.
The clause it cited, Article 8, states that the laws of foreign states should not be applied if doing so leads to the violation of “the public order or boni mores [good morals] of the Republic of China.”
More broadly, the court found that the restrictions in Article 46 run contrary to the Council of Grand Justices’ Interpretation No. 748, which established the constitutional right to equal marriage.
However, the court noted that Chi’s partner has been unable to provide a certificate showing that he is single, and has said the COVID-19 pandemic and fear of legal repercussions in Malaysia have prevented him from applying for one.
For that reason, the office would not be required to register the marriage until it received the documentation, it said.
In remarks to the media, Chi said that the ruling was “half a win, half a loss,” but expressed hope that the legislature would soon consider amendments to recognize all international same-sex marriages.
Those amendments, proposed on Jan. 22 by the Judicial Yuan, would revise Article 46 to allow and recognize same-sex marriages as long as one of the partners is a Republic of China national.
The Judicial Yuan’s proposed revisions must be reviewed by the Executive Yuan before being jointly submitted by the two branches to the legislature for approval.
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