Report Highlights Widespread Differential Treatment of Relationships in Hong Kong

Differential treatment on the basis of relationship status is widespread in Hong Kong. In areas as diverse as taxation, anti-discrimination and criminal matters, the law does not recognise civil partnerships and same-sex marriages formed in jurisdictions outside Hong Kong. Although individuals in these relationships may share the same emotional, financial and social bonds as opposite-sex spouses, they often lack the same rights, benefits and obligations.

These are the findings of Allen & Overy’s report “The Recognition and Treatment of Relationships under Hong Kong Law”, commissioned by Hong Kong’s Equal Opportunities Commission and released in June this year.

Supported by a team of international researchers, 1,700 provisions were reviewed across 537 Ordinances. The report identifies over 100 instances of differential treatment based on relationship status, across 21 separate areas. As Professor Yiu-Tung Suen of The Chinese University of Hong Kong remarked on reviewing the report, “Examples of differential treatment on the basis of relationship status can be found in almost all aspects of daily life, from the moment a relationship is formed to the end of life.”

Speaking on behalf of the Hong Kong LGBT+ Attorneys Network (HKGALA), co-founder Marc Rubinstein encourages lawmakers to use this research as a catalyst for change. “This report should serve as a basis for all stakeholders to re-examine the current legal framework around same-sex couples in Hong Kong to ensure that loving couples are not subject to unfair discrimination.”

Legislation is inconsistent

Allen & Overy’s research uncovered many inconsistencies in the recognition of alternative relationships.

In some cases, the law recognises non-marital relationships. For instance, domestic violence legislation considers opposite-sex and same-sex cohabitating partners the equivalent of opposite-sex spouses. But in several other cases where the law recognises cohabiting unions, such as under the Mandatory Provident Fund Scheme, it stipulates that cohabiting partners must be of opposite sexes. Such inconsistencies are enabled by the fact that there is no standard definition of a cohabitation relationship under Hong Kong law.

Currently, the Government is broadening the scope of racial discrimination legislation to protect cohabiting individuals from unfair treatment on the grounds of their partner’s race. Anti-discrimination measures based on family status, however, are limited to individuals in opposite-sex marriages. And while cohabitees are protected from discrimination on the grounds of their partner’s disability, no such protection exists if they are caring for a terminally ill partner.

The law treats couples differently

Since Hong Kong law does not recognise marriage and civil partnership between same-sex couples, these individuals are prevented from enjoying the rights held by opposite-sex spouses. Couples in alternative relationships, for instance, cannot apply for public housing as an Ordinary Family and are subject to a longer waiting time for housing. They cannot apply for certain tax deductions and allowances such as the married person’s allowance. And cohabiting and same-sex couples face various legal barriers in trying to start a family. Unlike opposite-sex spouses, partners in alternative relationships do not have the right to adopt children together. If they are struggling to conceive, they cannot access reproductive technology.

Other instances of differential treatment undermine the integrity of non-marital bonds. For example, while individuals in opposite-sex marriages are entitled to immediate notification if their spouse dies in prison, those in alternative relationships have no such right. Nor are they entitled to the estate of a partner who dies intestate. And unlike opposite-sex spouses, individuals in alternative relationships cannot object to their deceased partner’s body parts being used for research and education.

After reviewing the report, Professor Suen added, “For me, one of the most poignant examples is that opposite-sex spouses who have been married for at least three years may donate organs to each other without the need for the approval of the Human Organ Transplant Board, whereas same-sex spouses are not protected in such an instance.”

Relationship status also impacts rights at work

Differential legal treatment according to relationship status does not just affect people’s personal lives. Our research found it also affects their rights in the workplace.

Dependants are entitled to certain benefits if they accompany a permanent resident who moves outside Hong Kong to take up a job. While opposite-sex spouses are categorised as dependants under the law, civil partners, cohabitees and same-sex spouses may not. In another example, if a deceased employee had been working under a continuous contract for at least five years before their death, their employer must make long-service payments to their opposite-sex spouse. Cohabiting and same-sex spouses, however, have no such right to compensation.

Differential treatment can also benefit those in alternative relationships to the detriment of workplace fairness. If a business becomes insolvent and cannot pay the wages it owes, an individual employed by the business and legally married to its owner cannot seek payment from the Protection of Wages on Insolvency Fund. But that same person would be eligible to apply to the fund if they were the business owner’s civil partner, cohabitee or same-sex spouse.

Differential treatment hinders effective law enforcement

Hong Kong’s criminal laws often fail to recognise non-marital relationships. As a result law enforcement agencies may be unable to prosecute for the same crime that would have been committed if those involved were legally married.

In the context of the financial markets, market misconduct laws 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 example, individuals with an interest in five per cent 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). Similarly, a director or chief executive officer of a listed corporation does not need to disclose their partner’s interests and short positions in the shares and debentures of their company unless that partner is an opposite-sex spouse.

Differential treatment also extends to bankruptcy. For example, a statutory presumption of unfair preference applies where someone who is bankrupt extends a gift of assets to their opposite-sex spouse. An equivalent gift to a cohabiting partner or same-sex spouse does not attract the same presumption.

As Professor Suen comments, “The Government, creditors and the general public can all be negatively affected by the failure of Hong Kong law to recognise alternative relationships.”

Recent legal challenges

People in Hong Kong increasingly accept the legitimacy of alternative relationships. According to a 2017 Family Council’s survey, 49.1 per cent of individuals in Hong Kong aged 15–34 and 47 per cent aged 35–54 view cohabiting relationships as legitimate unions. Growing acceptance is also evident in public opinion around same-sex relationships. In a 2018 survey by the University of Hong Kong’s Centre for Comparative and Public Law, 50.4 per cent of respondents supported same-sex marriage, up from 38 per cent in 2013.

At the same time, there have been several legal challenges against relationship status discrimination.  In July 2018, the Court of Final Appeal found the Director of Immigration had acted unlawfully in deciding that the same-sex civil partner of an eligible sponsor was not entitled to apply for a dependant visa.  The Court rejected the Director’s argument that same-sex couples cannot be compared to opposite-sex spouses for the purposes of the Director’s immigration policy and found that the difference in treatment was not justified.

More recently, a civil servant successfully appealed against a decision of the Secretary of the Civil Service not to provide medical and dental benefits to his same-sex spouse, and against a decision of the Commissioner of Inland Revenue that the couple were ineligible for joint assessment for salaries tax.

Professor Suen comments, “International human rights obligations and the recent court decisions … have highlighted that same-sex couples should not be discriminated against in being denied key rights that married opposite-sex couples have.”

Looking to the future

“This comprehensive report identifies multiple laws on our statute books, covering virtually every aspect of life, that discriminate against persons in alternative relationships – specifically same-sex relationships and opposite-sex cohabitees,” notes Michael Vidler of Vidler & Co. Solicitors.

But our research demonstrates that the effects of differential recognition and treatment of people in alternative relationships does not end with those individuals but extends to Hong Kong society at large.

In releasing this report, Allen & Overy hope that conversations among lawmakers, businesses and citizens about avenues for possible change will be encouraged.

Vicki Liu, Hong Kong managing partner comments: “We are very grateful to the Equal Opportunities Commission for commissioning this substantial and timely piece of research. 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.”

Rubinstein adds that HKGALA is looking forward to working with its partners in the legal community, the public, private and non-governmental sectors to ensure that the report results in concrete changes. “We think this would be to the benefit of Hong Kong people regardless of sexual orientation, showing Hong Kong as a leader in casting off antiquated forms of discrimination and helping to preserve and enhance its status as a global financial capital.”

Please visit www.allenovery.com/EOC for the full report or access it via this QR code:

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.