Taipei-The Taipei High Administrative Court on Thursday revoked a decision by a household registration office not to permit a same-sex marriage involving a foreign national from a country in which such marriages are illegal, and proposed alternate legal grounds on which the marriage could be performed.
In the case in question, Taipei's Daan District Household Registration Office refused to permit the marriage of Taiwanese gay rights activist Chi Chia-wei (???) and his Malaysian partner when they attempted to do so on May 24, 2019.
The office based its decision on Article 46 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, which states that "the formation of a marriage is governed by the national law of each party."
In practice, this has meant that same-sex couples involving a partner from a country in which gay marriage is illegal -- such as Malaysia -- are not allowed to marry in Taiwan or have a marriage conducted in a third country legally recognized.
In its ruling on Thursday, however, the administrative court revoked the office's refusal, and ordered it to use a superior clause in the same law to conduct such marriages in the future.
The clause it cited, Article 8, states that the laws of foreign states should not be applied if doing so leads to the violation of "the public order or boni mores (good morals) of the Republic of China."
More broadly, the court found that the restrictions in Article 46 run contrary to the Constitutional Court's Interpretation No. 748, which established the constitutional right to equal marriage.
As relates to this particular case, however, the court noted that Chi's partner has been unable to provide a certificate showing that he is single, and has said the COVID-19 pandemic and fear of legal repercussions in Malaysia have prevented him from applying for one.
For that reason, it said, the registry office would not be required to register the marriage until it received the necessary documentation.
In remarks to the media, Chi said the ruling was "half win, half loss," but expressed hope that the Legislature will soon take up draft legal amendments to recognize all international same-sex marriages.
Those amendments, proposed on Jan. 22 by the Judicial Yuan -- the judicial branch that oversees Taiwan's court systems and runs the Constitutional Court -- would revise Article 46 to allow and recognize same-sex marriages as long as one of the partners is a Republic of China (Taiwan) national.
The Judicial Yuan's proposed revisions must be reviewed by the Executive Yuan before being jointly submitted by the two government branches to the Legislature for approval.
Source: Focus Taiwan News Channel