Rule barring registration of cross-national gay couple marriages scrapped

In a sudden policy reversal, Taiwan has decided to allow same-sex couples with one Taiwanese and one foreign national to register their marriage even if the foreign partner is from a jurisdiction where same-sex marriages are illegal.

In a directive issued Thursday to all local governments across Taiwan, the Ministry of the Interior (MOI) said the previous rule was discriminatory against cross-national gay couples and contradicted the law that guarantees same-sex marriage in Taiwan.

Taiwan became the first country in Asia to legalize same-sex marriage following the enactment of the Act for Implementation of Judicial Yuan Interpretation No. 748 in May 2019.

Over the past four years, however, same-sex couples in which one of the partners is Taiwanese and the other comes from a country or region where same-sex marriage is outlawed have been barred from officially tying the knot in Taiwan.

Household Registration Offices across the country have rejected applications for marriage registration filed by such couples based on a directive issued by the MOI, which governs matrimonial affairs, in July 2019.

The 2019 directive cited Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, which stipulates that the formation of a marriage is governed by the national law of each party's home country, as its legal basis.

Cross-national same-sex couples had challenged the rule, mostly with the pro bono support of the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), by suing household registration offices that rejected their marriage registrations.

Since March 2021, the Taipei High Administrative Court has ruled in favor of all five cross-national same-sex couples, involving partners from Malaysia, Macao, Singapore, Japan, and Hong Kong, who have filed marriage registration lawsuits.

In three of those cases, the court overrode the MOI directive and instead adopted Article 8 of the same act, which states the law of a foreign country shall not be applied if the result of such application leads to "a violation of the public order or boni mores of the Republic of China."

Despite those rulings, the MOI had insisted they were isolated cases and that it was legally bound to continue rejecting the registration of marriages by cross-national same-sex couples in this regard in accordance with Article 46, until Thursday.

The MOI's new directive, effective immediately, instructed household registration offices to adopt Article 8 and not Article 46 when cross-national same-sex couples with one partner from a country or region that does not recognize same-sex marriage applies to register their union.

The MOI said the change in policy, which was in line with the conclusion of a Cabinet meeting on Jan. 10, was made because the administrative court had made "consistent" judgments on the matter in several lawsuits.

The MOI noted, however, that the new rule would not apply to same-sex couples with one partner from China, where gay marriage is not legalized, as their marriage registration should abide by the Act Governing Relations between the People of the Taiwan Area and the Mainland Area and its relevant regulations.

According to those regulations, same-sex couples should complete their marriage registration in China before they register their marriage in Taiwan.

In a press statement Thursday night, several rights groups, including the TAPCPR and the Taiwan Association for Human Rights, welcomed the MOI's new rule, saying it demonstrated the Cabinet's efforts to support equal rights for the gay community.

They, nevertheless, found it regrettable that the hurdle remained for same-sex couples with one partner from China, adding that they would continue advocating those couples' right to register their marriage in Taiwan.

Source: Focus Taiwan News Channel