Taiwan gay marriage laws have implications for Australians
Friday, June 14, 2019
Congratulations to Taiwan for being the first country in Asia to recognise same-sex marriages. The recent vote by Taiwan’s parliament to uphold the laws came within a day of the deadline set by that country’s Supreme Court which had outlined the ban on same-sex couples being married as unconstitutional, and gave Taiwan’s parliament a deadline to pass laws to recognise same-sex marriage, and if it didn’t, it would make its own laws on point.
Following a public referendum, parliament then was faced with three competing bills, two of which in effect would have defeated the effect of the Supreme Court decision. The bill that passed was the only one that properly recognised same-sex marriages.
Now for the first time, same-sex couples have and are able to be married in Taiwan. They are able to participate in a stepparent adoption. Adoption is not generally allowed for them. Similarly there is no ability for them to engage in surrogacy as a married couple.
According to the existing Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, Taiwanese citizens can only marry foreign same-sex spouses who are citizens of countries where same-sex marriage is legal. Article 9 of the Act makes plain:
“The legal capacity of a person is governed by his/her national law.”
Therefore an LGBT Taiwanese person can engage in a same-sex marriage with an Australian citizen. If an Australian citizen has multiple citizenships, then it would seem that because that person is an Australian citizen (and equal marriage is allowed in Australia) then the couple can marry. However, it would be wise to obtain advice from a Taiwanese lawyer before marrying first.
If one of the spouses to be is a citizen of a country that does not recognise same-sex marriage, for example, the Peoples Republic of China, then that marriage will not be recognised. The Peoples Republic does not allow multiple citizenships (unlike Australia). Therefore a gay or lesbian Chinese citizen living in Australia as a permanent resident who wishes to marry in a same-sex marriage with a Taiwanese citizen, may consider obtaining Australian citizenship, then disclaiming Chinese citizenship so that that marriage is recognised in Taiwan.
Because of the complex legal issues involved, anyone in that situation ought to consider obtaining careful legal advice first before undertaking those steps.
