The Recognition and Treatment of Relationships under Hong Kong Law

In June 2019, Allen & Overy, along with the Equal Opportunities Commission (EOC), released a report highlighting areas of Hong Kong legislation and policy in which an individual’s relationship status impacts their legal rights and obligations.

The EOC’s 2016 Discrimination Law Review highlighted that Hong Kong’s marital and family status anti-discrimination laws only protect those individuals who are recognised as married under Hong Kong law. Allen & Overy’s report builds upon those findings and provides an unprecedented overview of legislation in Hong Kong, identifying differential treatment of individuals in opposite-sex marriages and those in alternative relationships, such as civil partnerships or cohabitation relationships – whether opposite- or same-sex – and same-sex marriages formed in other jurisdictions.

With some exceptions, Hong Kong law does not recognise such alternative relationships. Individuals in such relationships are therefore prevented from enjoying the rights held by opposite-sex spouses. Allen & Overy’s report, entitled “The Recognition and Treatment of Relationships under Hong Kong Law”, identifies over 100 instances of differential treatment based on relationship status. It highlights that couples in alternative relationships are denied the right to:

• jointly adopt children;

• apply for public housing as an Ordinary Family;

• access reproductive technology;

• receive immediate notification if a partner dies in prison;

• inherit a deceased partner’s estate if that partner dies without a will;

• object to the removal of a deceased partner’s body parts for medical research or education; and

• apply for certain allowances and deductions that can lower a couple’s tax burden, such as the married person’s allowance, which is only available to opposite-sex spouses and not same-sex married couples.

But while differential treatment impinges on the rights of individuals in alternative relationships, its repercussions do not end there. The government’s failure to recognise alternative relationships also hampers effective law enforcement. Market misconduct laws, to give one example, are designed to prosecute individuals who disclose certain information to their close associates. These laws only recognise opposite-sex spouses and cohabitees living as each other’s “reputed spouse” as close associates, making it more challenging to punish offenders who are in a same-sex relationship. In another situation, individuals with an interest in 5 percent of the voting shares of listed corporations in Hong Kong must publicly disclose their opposite-sex spouse’s interests and short positions in those shares. But there is no such obligation to disclose a non-marital partner’s interests and short positions (whether same- or opposite-sex). The public therefore risks being less informed about the interests of shareholders, directors, and chief executive officers in listed corporations when those individuals are in alternative relationships.

As social views change in Hong Kong, people increasingly accept the legitimacy of relationships other than opposite-sex marriage. There is greater acceptance of couples who choose to live together without being married. Support is also growing for anti-discrimination protections for lesbian, gay, bisexual, transgender, and intersex (LGBTI+) people. Yet opposite-sex marriage remains the only broadly legally recognised voluntary personal relationship in Hong Kong.

We hope that the report will allow local stakeholder groups and other institutions to engage in discussion as to whether particular areas of law may benefit from reform and, if so, how reform may be pursued.

Editorial Note: This is a summary of the article “Report Highlights Widespread Differential Treatment of Relationships in Hong Kong” which was circulated via Hong Kong Lawyer eNewsletter and posted on Hong Kong Lawyer website in August 2019.

Jurisdictions

Partner, Allen & Overy

Matt Bower is a partner in Allen & Overy's litigation and dispute resolution team in Hong Kong. Matt advises financial institutions and corporates in connection with internal and regulatory investigations as well as litigation before the High Courts in Hong Kong and England and Wales.  
 
Matt has substantial experience of advising clients on the conduct of regulatory investigations across Asia-Pacific, having advised on some of the most high profile benchmark investigations in the region concerning financial services conduct and competition issues and a number of investigations regarding the assessment of client suitability for financial products.