Same-sex Marriage

Subsequent to the judgement of the Court of Final Appeal in Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127, a same-sex marriage would be regarded as a valid marriage for the purposes of the Inland Revenue Ordinance (the Ordinance).

Background

In section 2(1) of the Ordinance, “marriage” is defined to mean:

(a)

(b)

any marriage recognized by the law of Hong Kong; or

any marriage, whether or not so recognized, entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so.

In the same section, “spouse” is defined to mean a husband or wife whereas “husband” and “wife” refer to a married man and married woman respectively.

Based on the above definitions, “marriage” was in the past construed as a heterosexual marriage between a man and a woman and parties in a same-sex marriage would be incapable of having a “spouse”. A same-sex marriage was thus not regarded as a valid marriage for the purposes of the Ordinance.

Judgement of Court of Final Appeal on the Differential Treatment

In Leung Chun Kwong case, the appellant entered into a same-sex marriage in 2014 in New Zealand where such marriage was legally recognized. Following his marriage, the appellant complained that he had been denied the right to update his marital status and that his spouse was denied access to the spousal medical and dental benefits under the Civil Service Regulations (CSRs). The Secretary for the Civil Service maintained that the appellant’s same-sex marriage was not a marriage within the meaning of Hong Kong law, so that his same-sex marriage partner was not the appellant’s spouse for the purposes of the CSRs and that accordingly, his same-sex marriage partner was not entitled to the spousal benefits (the Benefits Decision). The appellant also complained that he was not able to elect for joint assessment of salaries tax under section 10 of the Ordinance. The Commissioner of Inland Revenue maintained that the appellant was not entitled to elect for joint assessment with his same-sex marriage partner because their same-sex marriage did not fall within the meaning of section 2(1) of the Ordinance (the Tax Decision). The appellant then applied for judicial review challenging the Benefits Decision and the Tax Decision. The appellant claimed that he had been unlawfully discriminated against on the basis of his sexual orientation.

Regarding the Tax Decision, both the Court of First Instance and Court of Appeal ruled against the appellant. Upon further appeal, the Court of Final Appeal (CFA) allowed the appellant’s appeal. The CFA recognized that the protection of the institution of marriage in Hong Kong, being heterosexual and monogamous, was a legitimate aim. However, the differential treatment under the Ordinance between a person in a heterosexual marriage and a person in a same-sex marriage entered into outside Hong Kong was not rationally connected to the legitimate aim and was not justified.

Remedial Interpretation of the Ordinance

Having allowed the appellant’s appeal in respect of the Tax Decision, the CFA considered that a remedial interpretation of the Ordinance was appropriate and ordered the following declaration:

(a)

the existing limb (b) of the term “marriage” in section 2 of the Ordinance shall be read as “any marriage, whether or not so recognized, entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so, provided where the persons are of the same sex and such a marriage between them would have been a marriage under this Ordinance but for the fact only that they are persons of the same sex, they shall be deemed for the purposes of such a marriage to have the capacity to do so”; and

(b)	for the purposes of the Ordinance, references to:
	(i)	“husband and wife” shall be read as “a married person and his or her spouse”;
	(ii)	“not being a wife living apart from her husband” shall be read as “not being a spouse living apart from the married person”; and
	(iii)	“either the husband or wife” shall be read as “either the married person or his or her spouse”.

Accordingly, a same-sex marriage would now be regarded as a valid marriage for the purposes of the Ordinance. A married person, whether in a heterosexual marriage or same-sex marriage, is entitled to elect for joint assessment or personal assessment jointly with the person’s spouse; and is entitled to claim allowances or deductions under the Ordinance in respect of the person’s spouse.