Hong Kong court rejects crucial bid to have overseas same-sex marriages recognised
A legal bid by LGBTQ+ activist Jimmy Sham to have overseas same-sex marriages recognised in Hong Kong has been rejected in court.
Sham married his partner in New York in 2013 and has been fighting to have his marriage recognised in Hong Kong for almost five years.
On Wednesday (24 August) the region’s Court of Appeal stated Hong Kong only acknowledges heterosexual unions. The judgement read that marriage was defined “as a voluntary union for life of one man and one woman to the exclusion of all others”.
Sham’s lawyer, Hectar Pun had argued the exclusion of same-sex marriage was a violation of people’s right to equality and cited Article 37 of the Basic Law that stipulates “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.
However the court dismissed this argument in their judgement.
“Whatever the position might be under the foreign law on marriage, it does not detract from the application of [Article 37 of the Basic Law] in Hong Kong,”
“The right of men and women of marriageable age to marry and to found a family shall be recognised. It strongly suggests that the freedom to marriage thereunder is granted to heterosexual couples only.”
The judgment concluded: “Self-evidently, the drafters of the Basic Law must have only used the term ‘marriage’ in [Article] 37 in the traditional sense of being a union between a heterosexual couple. Any suggestion otherwise is divorced from reality.”
Sham launched his first judicial review in a bid to get overseas same-sex marriages recognised in Hong Kong, in 2018.
The Court of First Instance dismissed Sham’s legal challenge and said it was too ambitious as reported by RTHK. But Sham didn’t lose steam, launching an appeal in July this year.
The court noted other couples who married overseas had attempted to get the same benefits as heterosexual couples but had failed, adding that couples in this position would face an “insurmountable hurdle”.
The court said it would be unfair to recognise foreign marriages whilst still blocking domestic same sex marriages.
The Court of Appeal stated the initial ruling by the judge on Sham’s bid in 2018 was correct and ordered him to pay legal costs.
Chief executive of Hong Kong LGBTQ+ organisation Pink Alliance, Jerome Yau, told RTHK: “Right now, the courts have dealt a significant blow, in terms of how to advance marriage equality in the courts.
“At the same time, I must caution with a note that this case can be appealed to the Court of Final Appeal. If the litigant decides to file an appeal, it means it’s not quite over yet.”
Sham hasn’t yet said whether he will appeal again.
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