Hong Kong’s inheritance laws are justified in treating same-sex married couples differently to heterosexual couples because of their differences in legal obligations, a court has heard during an appeal hearing.
The government’s appeal came after the High Court ruled in favour of gay widower Henry Li and his late husband Edgar Ng in 2020 that same-sex couples should enjoy equal rights under the city’s two inheritance laws – the Inheritance (Provision for Family and Dependants) Ordinance (IPO) and the Intestates’ Estates Ordinance (IEO).
Tuesday’s hearing was heard by a panel of three judges – Justice of Appeal Peter Cheung, Maria Yuen and Thomas Au – at the Court of Appeal.
Ng filed the original legal bid under concerns that his spouse could not inherit a government subsidised flat bought in his name in 2018 in the absence of a will. The couple were married in London in 2017.
‘Materially distinguished’
Treating heterosexual and same-sex couples differently under the city’s inheritance laws could be justified because the two groups were “materially distinguished,” government lawyer Abraham Cheng said.
Cheng said it was a “root difference” that under Hong Kong’s marriage laws, heterosexual couples were obliged to provide for the needs of each other, but the same legal duty did not apply to same-sex couples. Same-sex marriage remains unrecognised in the city.
Additionally, Cheng said there were a number of existing legislations treating opposite sex couples and their homosexual counterparts differently, but those laws were not challenged as unlawful. Cheng said the inheritance laws existed to extend these differences “into the post-death realm.”
Representing Li at the hearing, Senior Counsel Jin Pao said the court should look at the definition of “valid marriage” listed in the two inheritance laws in question, which included “marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.”
Pao said the comparison, therefore, should be made between homosexual and heterosexual marriages celebrated overseas, adding that the two laws have recognised heterosexual married couples without considering whether they have the duty to provide for their partners.
“The duty of maintenance has no correlation at all to the two ordinances,” he said.
Status of ‘traditional marriage’
The government lawyer also said that granting same-sex couples equal rights to inheritance would “tend to erode” the distinct status and benefits of heterosexual marriage, which was protected by various local legislations and the Basic Law.
Pao responded that while Hong Kong’s mini constitution protected a certain form of marriage, it did not render a “material distinction” between same-sex and opposite-sex couples, otherwise it would undermine people’s equality before the law.
In addition, Pao said the focus should not be on the benefits of the two laws to the promotion of “traditional marriage,” but whether excluding same sex couple from inheritance laws encouraged “traditional” family values.
“The answer is obviously a no,” Pao said.
‘Limited’ unfairness
While agreeing that existing inheritance laws might bring a “felt impact on dignity” to homosexual couples, Cheng said it was important for the court to recognise that they were not “completely shut out” by the inheritance laws and it was not a case of direct discrimination.
Under the IPO, any person who can prove the deceased had a duty to provide their needs before death is eligible to apply for financial provisions.
But the IEO, which oversees the succession of estates in the absence of a will, does not have a similar arrangement.
“I’m not saying there is no prejudice, there is. But the prejudice is limited,” Cheng said.
However, Pao said the IPO alone carries two aspects of differential treatment, as said proof of provision was not required from opposite-sex couples, and what a heterosexual widower entitled to is not limited to their own maintenance.
“The law wants to say that you are essentially an outsider,” Pao said, adding that the court should take into account the message sent on top of the law’s practical effects.
The judgement is expected within six months.
Correction 14/12/2022: A previous version of this article misrepresented the name of government lawyer Abraham Cheng as Andrew Cheng. We regret the error.
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